from The New Yorker
“I am not beyond the belief that someday a provider could turn on my cell phone and listen to my conversations,” Justice Sonia Sotomayor said on Wednesday, in the oral arguments in the case of Timothy Ivory Carpenter v. United States. She is correct; indeed, there have been indications that that day may have already arrived. And yet the government argued that when prosecutors—without a warrant—looked at some of the most intimate information that a cell-phone company can collect about its customers, they were not doing anything distinctly intrusive. The Carpenter case began with a string of robberies in which cell phones, of all things, were stolen from Radio Shacks and T-Mobile stores in Michigan and Ohio—not, in other words, a major terrorism or national-security case. One suspect turned over his phone, and on it prosecutors found that he had been in touch with Carpenter, who lived in Detroit. They then collected a hundred and twenty-seven days’ worth of Carpenter’s past cell-phone locations, revealing where and, by implication, with whom Carpenter had been at every moment of those four months. They were able to get that information with a simple order with a far lower standard than probable cause (which is what a warrant requires) and without anyone in law enforcement even having to swear out an affidavit. They used the information to convict Carpenter of six of the robberies; thanks to mandatory minimums, he was sentenced to a hundred and sixteen years in prison.
But, as Sotomayor and several other Justices pointed out—the oral arguments made it clear that both liberals and conservatives on the Court were troubled—prosecutors could, by the government’s standard, have asked for almost anything. Soon enough, they could ask for more than we can even imagine now. Nathan Wessler, an American Civil Liberties Union lawyer who was arguing Carpenter’s case, mentioned “information about the state of the body, like heart-rate data from a smart watch, or fertility-tracking data from a smartphone app; information about the interior of a home, for example, from a smart thermostat that knows when the homeowner is at home and perhaps what room they’re in.” Later, when Sotomayor was questioning Michael Dreeben, the government’s lawyer, she noted, “I don’t, but I know that most young people have the phones in the bed with them.”