A Liberal-Conservative Alliance on the Supreme Court Against Digital Surveillance

By Jeffrey Rosen

On Wednesday, the Supreme Court heard what could become the most important electronic privacy case of the 21st century. The justices considered whether the government, without a warrant, can effectively trace our movements in public for months on end by demanding 127 days of the geolocational data—known as cell-site location information—that mobile phones beam out 24 hours a day. During the argument, it was encouraging to see two justices with very different perspectives—Justices Sonia Sotomayor and Neal Gorsuch—make passionate arguments for why allowing these kinds of mass searches of our digital effects would be as invasive and unreasonable as the hated general warrants that helped spark the American Revolution. It’s possible, therefore, that Carpenter v. United States may continue a welcome recent trend: Liberal and conservative justices on the Court, by broad bipartisan margins, are insisting on translating the Fourth Amendment to the Constitution into the digital age.

Justice Elena Kagan framed the stakes in the case by asking Michael Dreeben, the deputy solicitor general, how this case was different from United States v. Jones, a 2012 case where the government tracked a suspect for a month without a warrant by clamping a Global Positioning System device on the bottom of his car. Five justices, led by Justice Antonin Scalia, said that the police violated the suspect’s property rights by committing a physical trespass for the purpose of collecting information—they walked onto his driveway and physically seized his car. But, as Kagan noted, four different justices, led by Justice Samuel Alito said that, even without physical trespass, “society’s expectation has been that law enforcement and others would not, and indeed in the main simply cannot, monitor and catalogue every single movement of an individual’s car for a very long period.” How, Kagan asked, was this case different than Jones?

Dreeben …read more

Via:: The Atlantic


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