Amicus Curiae Brief — Carpenter v. United States, 138 S. Ct. 293 (2017) (No. 16-402)

Supreme Coun, U.S.

FLED

ts a 120

GRIEFS No. 16-402 OFFICE OF THE CLERK

IN THE

Supreme Court of the Anited States

TIMOTHY IVORY CARPENTER,

Petitioner,

Vv.

UNTTED STATES OF AMERICA,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals for the Sixth Circuit

BRIEF AMICI CURIAE OF THE REPORTERS COMMITTEE FOR

FREEDOM OF THE PRESS AND 19 MEDIA ORGANIZATIONS IN

SUPPORT OF PETITIONER

Bruce D. Brown

Counsel of Record

Caitlin Vogus

Selina MacLaren

THE REPORTERS COMMITTEE

FOR FREEDOM OF THE PRESS

1156 16th St. NW, Suite 1250

Additional counsel listed in Appendix A

nr NN

TABLE OF CONTENTS

Ta COE Ce rt Oe ekvcctcenecsiinnssesuscesienssesoscicoutoncees 1

INTEREST OF AMICI CURIARE..................:ssscceseeeess l

TIRE GPU HRMPUBE IEEE Ty cpicsncn eve nnsinsesccntscestesseiess 9

FEIT Sunsisiinertintsvvticlsnbittipubiabinedissnennenabibesnsiuiseti 11

1. The history of the Fourth Amendment is

intertwined with the First Amendment’s

guarantees of free expression and a free press. ... 11

ll. Warrantless acquisition of CSLI records

chills the exercise of First Amendment rights,

1MACHUGIMAM MOWORRENOTING, ...000ccccrececerssccseseccccesssseee 14

A. Long-term tracking of historical CSLI can

reveal sensitive First Amendment-protected

i rciiscciducsssnéscdinnentipnoricnienicisdeniasnenirctiinnnies 15

B. CSLI acyuisition threatens the

newsgathering process. ................6605 ROR ERSIATE aes

11]. Fourth Amendment protections should be

rigorously applied when the government seeks to

obtain CSLI because First Amendment interests

Ok AA SESS Mera e EAS SS lee. eRe a.ed 1m pan Woe eer 22

lV. The U.S. Court of Appeals for the Sixth

Circuit’s application of the third-party doctrine to

CSLI records imperils the free and unfettered

exercise of First Amendment mghts. .................... 23

CONCLUSION ........... eusuiash aa inless aks tibighsssca ndakialadedauace se 28

APPENDIX A: List of Additional Counsel..............A-1

ii

TABLE OF AUTHORITIES

Cases

Bates v. Littie Rock, 361 U.S. 516 (1960)................. 17

Boyd v. United States, 116 U.S. 616 (1886). 11, 12, 13

Brower v. County of Inyo, 489 U.S. 593 (1989)........ 12

City of Ontario v. Quon, 560 U.S. 746 (2010). ......... 15

Commonwealth v. Augustine, 4 N.E.3d 846 (2014). 26

Entick v. Carrington, 19 How. St. Tr. 1029 (C.P.

Frank v. Maryland, 359 U.S. 360 (1959) .............-... 14

In re Application of the U.S. for an Order Directing a

Provider of Elec. Comme’n Serv. To Disclose

Records to Gov't, 620 F.3d 304 (3d Cir. 2010) 24, 26

In re Application of the U.S. for Historical Cell Site

Data, 724 F.3d 600 (5th Cir. 2013).............. ceili 24

Kyllo v. United States, 533 U.S. 27 (2001)............... 25

Marcus v. Search Warrant, 367 U.S. 717 (1961)11, 13

NAACP v. Alabama ex rel. Patterson, 357 U.S. 449

Riley v. California, 134 S. Ct. 2473 (2014) ........ 15, 20

Smith v. Maryland, 442 U.S. 735 (1979).... 22, 24, 25

Stanford v. Texas, 379 U.S. 476 (1965)............. passim

State v. Earis, 70 A.3d 630 (N.J. 2013)....... Genie 16

United States v. Carpenter, 819 F.3d 880 (6th Cir.

il

United States v. Davis, 785 F.3d 498 (11th Cir. 2015)

sa susAdveiabsshdelashonaidasvores api'e-Gitie's cotta sdeatbuadiionsaneeavenedacitdnvgudeaiie 24, 25

United States v. Graham, 824 F.3d 421 (4th Cir.

SE diasndavnccamendecseidesorcenbecainexcandudsaaieadanen 15, 24, 25, 26

United States v. Jones, 565 U.S. 400 (2012) 16, 17, 27

United States v. Maynard, 615 F.3d 544 (D.C. Cir.

III ar sc'ss sss 534s adiatntocanmacaguchiiadaatnaabieneoeaiadncteieeniceas 16

United States v. Miller, 425 U.S. 435 (1976)........... 24

Wilkes v. Wood, 19 How. St. Tr. 1153 (C.P. 1763).. 11,

13

Zurcher v. Stanford Daily, 436 U.S. 547 (1978)

eft SURE BA Pe ca EO NRE PER ER RCM AE RRA passim

Statutes

ee ea ae I hrccicieenctas dnd ce cesateces sates 19, 22

Other Authorities

Dan Gillmore, Beyond Encryption, Colum. J. Rev.

NE WIE TE, 2 asiieusacs Ghrseapedehubeaeebeapharimtmansehanseness 21

Dana Priest, CIA Holds Terror Suspects in Secret

Prisons, Wash. Post (Nov. 2, 2005) ....................64. 19

Eric Lichtblau, C.I.A. Tracked Russian Prying in the

Summer, N.Y. Times (Apr. 7, 2017)..................00+ 19

FBI releases files on columnist Jack Anderson, NBC

NN ad SOs II sscrrsigan ss ccnasisanecipecesisacnesnsibinekandnns 17

iv

Government Surveillance: U.S. Has Long History of

Watching White House Critics and Journalists,

Newsweek (Jun. 23, 1975; republished Jul. 24,

coe iotenslaessocetnns TREO AER SEE BE Sa iaianabeaanitein 17

Il May’s Constitutional History of England, 246 (Am.

Sie I skis scisedeapeenscsiit len dektsarestoriesecseaiiduaiiaioneiiiasoesashnsetunsiienin 13

James Risen & Eric Lichtblau, Bush Lets U.S. Spy

on Callers Without Courts, N.Y. Times (Dec. 10,

i ee 19

Lana Sweeten-Shults, Anonymous sources vital lo

journalism, USA Today (Feb. 27, 2017) ............... 20

Lindy Royce-Bartlett, Leak Probe Has Chilled

Sources, AP Exec Says, CNN (Jun. 19, 2018)....... 21

Mark Sherman, Gov’t Obtains Wide AP Phone

Records in Probe, Associated Press (May 13, 2013)

site da pun Coansigacladaenaa caen sda diehan esekon tn oie cndaiimamomnecaauaiail 21

Meeting in Person Mosi Common Way to Protect

Sources, Pew Research Center (Feb. 4, 2015)...... 18

Michael Farrell, Anonymous Sources, SPJ Ethics

COMMIRIED FROGGER POROR. 2.000. .0cscresisscrvesecssccocsese 19

Scott Shane, David Johnston, James Risen, Secret

U.S. Endorsement of Severe Interrogations, N.Y.

i ER a pacittoscindntduehesmvetsnenabevsstadinsioasasnis 19

Souad Mekhennet and Joby Warrick, U.S.

Increasingly Sees Iran’s Hand in the Arming of

Bahraini Militants, Wash. Post (Apr. 1, 2017) .... 19

Spencer S. Hsu, Court: Warrantless requests to track

cellphones, Internet use grew sevenfold in D.C. in

three years, Wash. Post (Jul. 18, 2017)................. 20

With Liberty to Monitor All: How Large-Scale US

Surveillance is Harming Journalism, Law, and

American Democracy, Human Rights Watch (Jul.

I Oc aa ne, team a as aed nina deses

INTEREST OF AMICI CURIAE'

The Reporters Committee for Freedom of the

Press is an unincorporated nonprofit association of

reporters and editors dedicated to safeguarding the

First Amendment rights and freedom of information

interests of the news media. Since 1970, the Report-

ers Committee has represented the interests of the

press and the public in cases involving significant

freedom of expression issues, including in this Court.

With some 500 members, American Society of

News Editors (““ASNE”) is an organization that in-

cludes directing editors of daily newspapers through-

out the Americas. ASNE changed its name in April

2009 to American Society of News Editors and ap-

proved broadening its membership to editors of

online news providers and academic leaders. Found-

ed in 1922 as American Society of Newspaper Edi-

tors, ASNE is active in a number of areas of interest

to top editors with priorities on improving freedom of

information, diversity, readership and the credibility

of newspapers.

The Associated Press Media Editors is a nonprof-

it, tax-exempt organization of newsroom leaders and

journalism educators that works closely with The

Associated Press to promote journalism excellence.

! Pursuant to Sup. Ct. R. 37, counsel for amic: curiae state that

no party's counse! authored this brief in whole or in part; no

party or party’s counsel made a monetary contribution intended

to fund the preparation or submission of this brief; no person

other than the amici curiae, its members or its counsel made a

monetary contribution intended to fund the preparation or

submission of this brief; and written consent of all parties to the

filing of the brief has been filed with the Clerk of the Court.

APME advances the principles and practices of re-

sponsible journalism; supports and mentors a diverse

network of current and cmerging newsroom leaders;

and champions the First Amendment and promotes

freedom of information.

7?

Association of Alternative Newsmedia (“AAN”) is

a not-for-profit trade association for 130 alternative

newspapers in North America, including weekly pa-

pers like The Village Voice and Washington City la-

per. AAN newspapers and their websites provide an

editorial alternative to the mainstream press. AAN

members have a total weekly circulation of seven

million and a reach of over 25 million readers.

First Amendment Coalition is a nonprofit public

interest organization dedicated to defending free

speech, free press and open government rights 1n or-

der to make government, at all levels, more account-

able to the people. The Cualition’s mission assumes

that government transparency and an informed elec-

torate are essential to a self-governing democracy.

To that end, we resist excessive government secrecy

(while recognizing the need to protect legitimate

state secrets) and censorship of all kinds.

First Look Media Works, Inc. is a new non-profit

digital media venture that produces The Intercept, a

digital magazine focused on national! security report.

ing.

Freedom of the Press Foundation is a non-profit

organization that supports and defends public.

interest journalism focused on transparency and ac-

countability. The organization works to preserve

and strengthen First and Fourth Amendment rights

guaranteed to the press through a variety of ave-

nues, including public advocacy, legal advocacy, the

promotion of digital security tools, and crowd-

funding.

The International Documentary Association (1DA)

is dedicated to building and serving the needs of a

thriving documentary culture. ‘Through its pro-

grams, the IDA provides resources, creates commu.

nity, and defends rights and freedoms for

documentary artists, activists, and journalists.

The Investigative Reporting Workshup, a project

of the School of Communication (SOC) at American

University, is a nonprofit, professional newsroom.

The Workshop publishes in-depth stories at investi-

galivereportingworkshop.org about government and

corporate accountability, ranging widely from the

environment and health to national security and the

economy.

The Media Consortium is a network of the coun-

trys leading, progressive, independent media outlets.

Our mission is to amplify independent media’s voice.

increase our collective clout, leverage our current

audience and reach new ones.

MPA — The Association of Magazine Media,

(“MPA”) is the largest industry association for maga-

zine publishers. ‘The MPA, established in 1919, rep-

resents over 175 domestic magazine media

companies with more than 900 magazine titles. The

MPA represents the interests of weekly, monthly and

quarterly publications that produce titles on topics

that cover politics, religion, sports, industry, and vir-

tually every other interest, avocation or pastime en-

joyed by Americans. The MPA has a long history of

advocating on First Amendment issues.

The National Press Photographers Association

(“NPPA”) is a 501(c)(6) non-profit organization dedi-

cated to the advancement of visual journalism in its

creation, editing and distribution. NPPA’s approxi-

mately 7,000 members include television and still

photographers, editors, students and representatives

of businesses that serve the visual journalism indus-

try. Since its founding in 1946, the NPPA has vigor-

ously promoted the constitutional rights of

journalists as well as freedom of the press in all its

forms, especially as it relates to visual journalism.

The submission of this brief was duly authorized by

Mickey H. Osterreicher, its General Counsel.

New England First Amendment Coalition is a

non-profit organization working in the six New Eng-

land states to defend, promote and expand public ac-

cess to government and the work it docs. The

coalition is a broad-based organization of people who

believe in the power of transparency in a democratic

society. Its members include lawyers, journalists,

historians and academicians, as well as private citi-

zens and organizations whose core beliefs include the

principles of the First Amendment. The coalition as-

pires to advance and protect the five freedoms of the

First Amendment, and the principle of the public’s

right to know m our region. In collaboration with

other like-minded advocacy organizations, NE FAC

also seeks to advance understanding of the First

Amendment across the nation and freedom of speech

and press issues around the world.

The News Media Alliance is a nonprofit organiza-

tion representing the interests of online, mobile and

print news publishers in the United States and Can-

ada. Alliance members account for nearly 90% of the

daily newspaper circulation in the United States, as

weil as a wide range of online, mobile and non-daily

print publications. The Alliance focuses on the major

issues that affect today’s news publishing industry,

including protecting the ability of a free and inde-

pendent media to provide the public with news and

information on matters of public concern.

The News Guild — CWA is a labor organization

representing more than 30,000 employees of news-

papers, newsmagazines, news services and related

media enterprises. Guild representation comprises,

in the main, the advertising, business, circulation,

editorial, maintenance and related departments of

these media outlets. The News Guild is a sector of

the Communications Workers of America. CWA is

America’s largest communications and media union,

representing over 700,000 men and women in both

private and public sectors.

Online News Association (“ONA”) is the world's

largest association of online journalists. ONA’s mis-

sion is to inspire innovation and excellence among

journalists to better serve the public ONA’s more

than 2,000 members include news writers, produc-

ers, designers, editors, bloggers, technvlogists, pho-

tographers, academics, students and others who

produce news for the Internet or other digital deliv-

ery systems. ONA hosts the annual Online News

Association conference and administers the Online

Journalism Awards. ONA is dedicated to advancing

the interests of digital journalists and the public

generally by encouraging editorial integrity and in-

dependence, journalistic excellence and freedom of

expression and access.

Radio Television Digital News Association

(“RTDNA”) is the world’s largest and only profes-

sional organization devoted exclusively to electronic

journalism. RTDNA is made up of news directors,

news associates, educators and students in radio,

television, cable and electronic media in more than

30 countries. RTDNA is committed to encouraging

excellence in the electronic journalism industry and

upholding First Amendment freedoms.

Reporters Without Borders has been fighting cen-

sorship and supporting and protecting journalists

since 1985. Activities are carried out on five conti-

nents through its network of over 150 correspond-

ents, its national sections, and its close collaboration

with local and regional press freedom groups. Re-

porters Without Borders currently has 10 offices and

sections worldwide.

Society of Professional Journalists (“SPJ”) is dedi-

cated to improving and protecting journalism. I[t is

the nation’s largest and most broad-based journalism

organization, dedicated to encouraging the free prac-

tice of journalism and stimulating high standards of

ethical behavior. Founded in 1909 as Sigma Delta

Chi, SPJ promotes the free flow of information vital

to a well-informed citizenry, works to inspire and ed-

ucate the next generation of journalists and protects

First Amendment guarantees of freedom of speech

and press.

The Tully Center for Free Speech began in Fall,

2006, at Syracuse University’s S.!. Newhouse School

of Public Communications, one of the nation’s prem

ier schools of mass communications.

A journalist on assignment today is the proverbial

one-man band with a cell phone for an instrument.

Today, reporters use cell phones to set up and record

interviews, write notes and articles, take pictures

and video, share their work on social media, follow

breaking news, research story tips, and engage in

other functions essential to newsgathering. The cel!

phone has become a mobile newsroom. The govern-

ment’s ability, therefore, to reconstruct journalists’

movements and location over an extended period of

time using historical] cell phone records threatens re-

porters’ ability to maintain the confidentiality of

their sources and gather the news. Because the gov-

ernment may seek a journalist’s records in the course

of a criminal investigation of another individual,

such as a source, this threat exists even though a

journalist’s routine newsgathering is of course not a

crime. Accordingly, this case presents a question

critical to the news media: Whether the Fourth

Amendment permits the warrantless seizure and

search of historical cell phone records revealing the

location and movements of a cell phone user over an

extended period of more than 125 days.

As news media organizations and organizations

dedicated to protecting the First Amendment inter-

ests of journalists, amici have an interest in ensuring

that the Fourth Amendment's protections against

unreasonable searches and seizures are fully and

strictly applied when the government seeks to obtain

historical cell phone records showing a user’s loca-

tion. Such records implicate First Amendment activ-

ities, including newsgathering, which will be chilled

if warrantless acquisition of such records is routinely

permitted. Properly applicd, however, the Fourth

Amendment affords protection to the exercise of First

Amendment rights.

9

SUMMARY OF ARGUMENT

This case concerns the constitutionality of the

warrantless acquisition by law enforcement of histor-

ical cellular telephone data revealing a comprehen-

sive picture of an_ individual’s location and

movements. In this case, the government sought the

data of a criminal suspect; but the standard govern-

ing such data adopted by the U.S. Court of Appeals

for the Sixth Circuit below and advanced by the gov-

ernment here applies equally to the data of any cell

phone user, including journalists. Because the

Fourth Amendment's prohibition against “unreason.

able searches and seizures” plays a vital role in pro-

tecting First Amendment rights, the yuestion

presented is one of particular importance to journal-

isis and news organizations. Absent meaningful

Fourth Amendment protection for records like those

at issue in this case, activities protected by the First

Amendment— including newsgathering, speech, ex-

pression, and association—will be chilled.

The Fourth Amendment's protection against un-

reasonable search and scizure is historically Jinked

to the First Amendment’s protection of the free

press. As this Court has long recognized, the Fourth

Amerdment was ratified in response to the pre-

revolutionary practice of arresting publishers and

confiscating papers to stifle dissenting viewpoints.

The press’s and the public’s right to expressive and

associational freedom therefore informs the scope of

the Fourth Amendment’s protection.

The records at issue in this case implicate precise-

ly those rights. Historical cell site location infor-

mation (“CSLI")—data gleaned from cell towers that

LO

creates a record of an individual’s location over

time—can provide an intimate picture of an individ-

ual’s political, professional, and religious associa-

tions. Such information can also reveal details about

the newsgathering process, including reporters’

communications with their sources, because the

practical realities of contemporary newsgathering

require journalists to carry and use cell phones on a

near-constant basis. Due to the revelatory nature of

location information, CSLI can be invasive even

when it follows movements over a much shorter peri-

od of time than the 127-day tracking at issue in this

case. The government’s ability to acquire CSLI

without meeting the Fourth Amendment’s probable

cause standard allows law enforcement to easily and

routinely surveil both sources’ and journalists’ ex-

pressive, associational, and newsgathering activities,

chilling individuals’ willingness to engage in such ac-

tivities.

In accord with the historical link between the

First and Fourth Amendments, this Court has in-

structed lower courts to apply the Fourth Amend-

ment with rigor when a search or seizure might

implicate First Amendment interests. See Zurcher v.

Stanford Daily, 436 U.S. 547, 564 (1978). Because

CSLI reveals an individuals First Amendment-

protected activities, it falls within the core category

of information that the Fourth Amendment was de-

signed to protect from warrantless surveillance. The

U.S. Court of Appeals for the Sixth Circuit, below,

however, expansively and erroneously applied the

third-party doctrine to deprive the CSLI records at

issue in this case of any Fourth Amendment protec-

tion. This ruling affects not just the mghts of crimi-

ll

nal suspects, but also the rights of any individual

whose records could be relevant to any criminal in-

vestigation, which may include journalists.

For these reasons, amici urge this Court to re-

verse and to hold that the acquisition of CSLI rec-

ords must satisfy the Fourth Amendment's

requirements.

ARGUMENT

I. The history of the Fourth Amendment is

intertwined with the First Amendment’s

guarantees of free expression and a free

press.

The Fourth Amendment’s prohibition against un-

reasonable searches and seizures arose from a long

list of abusive English practices targeting printers

and publishers of dissenting papers in the colonial

era. Indeed, as this Court has stated, the history of

the Fourth Amendment is “lurgely a history of con-

flict between the Crown and the press.” Stanford v.

Texas, 379 U.S. 476, 482 (1965). Pre-revolution

“seneral warrants” allowed law enforcement to

search “private houses for the discovery and seizure

of books and papers that might be used to convict

their owner of the charge of libel,” to the detriment of

the free press. Boyd v. United States, 116 U.S. 616,

626 (1886).

Two landmark cases that help to form the basis

for our understanding of the Fourth Amendment's

history and purpose--/ntick v. Carrington, 19 How.

St. Tr. 1029 (C.P. 1765), and Wilkes v. Wood, 19 How.

St. Tr. 1153 (C.P. 1763)—involved the press. See

Marcus v. Search Warrant, 367 U.S. 717, 724 (1961)

12

(explaining that these cases were “part of the intel-

lectual matrix within which our own constitutional

fabric was shaped”).

In Knitick, the British Secretary of State issued a

general warrant for the arrest of a writer for a dis-

senting publication for seditious libel and the seizure

of all of his papers. See Stanford, 379 U.S. at 483.

The King’s messengers ransacked the writer’s house

for four hours, seeking seditious material. /d. at

483-84. In an opinion this Court called “a wellspring

of the rights now protected by the Fourth Amend-

ment,” Lord Camden declared the warrant unlawful:

“His house is rifled, his most valuable secrets are

taken out of his possession, before the paper for

which he is charged is found to be criminal by any

competent jurisdiction, and before he is convicted ei-

ther of writing, publishing, or being concerned in the

paper.” Jd. at 484 (quoting Entick, 19 How. St. Tr.

At 1064). In response to Entick, the House of Com-

mons passed two resolutions condemning such gen-

eral warrants. Jd. This Court has described Entick

“as a ‘monument of English freedom’ ‘undoubtedly

familiar to ‘every American statesman’ at the time

the Constitution was adopted, and considered to be

‘the true and ultimate expression of constitutional

law” in the area of search and seizure. Brower v.

County of Inyo, 489 U.S. 5938, 596 (1989) (quoting

Boyd, 116 U.S. at 626).

A few years earlier in Wilkes, the Crown had sim-

ilarly attempted to silence a publication that was

anonymously published by John Wilkes, then a

member of Parliament. Stanford, 379 U.S. at 483.

The warrant in that case authorized the King’s mes-

sengers “to make strict and diligent search for the

13

authors, printers, and publishers of a seditious und

treasonable paper, .. . and them, or any of them,

having found, to apprehend and seize, together with

their papers.” Jd. (quoting Il May’s Constitutional

History of England, 246 (Am. Ed. 1864)). The mes-

sengers “set forth in quest of unknown offenders; and

unable to take evidence, listened to rumors, idle ta-

les, [ ] curious guesses,” and “held in their hands the

liberty of every man whom they were pleased to sus-

pect.” Jd. at 483 (quoting Il May’s Constitutional]

History ef England, 246 (Am. Ed. 1864)). Wilkes

successfully sued the Secretary of State for damages,

and Lord Camden condemned the general warrant,

concluding that the “discretionary power given to

messengers tu search wherever their suspicions may

chance to fall” was “totally subversive of the liberty

of the subject.” Marcus, 367 U.S. at 728-29 (quoting

Wilkes, 19 How. St. Tr. at 1167).

Both Entick and Wilkes illustrate that “(t]he Bull

of Rights was fashioned against the background of

knowledge that unrestricted power of search and se}-

zure could also be an instrument for stifling liberty of

expression,” Marcus, 367 U.S. at 729, and for un-

dermining the freedom of the press. When Congress

drafted the Bill of Rights, Lord Camden’s monumen-

tal Entick opinion was doubtlessly “in the minds of

those who framed the [FJourth [A}mendment.” Boyd,

116 U.S. at 626-27: see also Zurcher, 436 U.S. at 569

(Powell, J., concurring) (noting that “[t]he Framers

were painfully aware” of the history of conflict be-

tween the Crown and the press). As Justice Douglas

put it, the First and Fourth Amendments “are indeed

closely related, safeguarding not only privacy and

protection against self-incrimination but ‘conscience

14

and human dignity and freedom of expression as

well.” Frank v. Maryland, 359 U.S. 360, 376 (1959)

(Douglas, J., dissenting) (internal citations omitted).

Thus, concerns about free expression, and in particu-

lar about protections for an unfettered press, are at

the core of the history of the Fourth Amendment. “It

was in the setting of freedom of expression that Lord

Camden denounced the general warrants,” and the

Fourth Amendment therefore must be understood as

a response to the “effort to destroy the freedom of

the press.” Jd. (citation omitted). Because of the

shared historical concerns of the First and Fourth

Amendments, the modern-day experiences of the

press are particularly relevant to understanding

Fourth Amendment safeguards.

Il. Warrantless acquisition of CSLI records

chills the exercise of First Amendment

rights, including newsgathering.

More than 200 years later, the application of the

Fourth Amendment is complicated by the advent of

new communications technologies, some of which are

essential to free expression and the newsgathering

process. Due to the ubiquitous nature of cell phones,

location information gleaned from cell towers can

disclose an individual’s expressive and associational

activities, as well as details about a journalist’s

newsgathering process. Such disclosure threatens to

chil] First Amendment-protected activities.

15

A. Long-term tracking of historical CSLI

can reveal sensitive First Amendment-

protected activities.

Communications technology is crucial to the exer-

cise of free expression and association. Cell phones

in particular have become “so pervasive that some

persons may consider them to be essential means or

necessary instruments for self-expression, even self-

identification.” City of Ontario v. Quon, 560 U.S.

746, 760 (2010). Thus, as cell phones become more

sophisticated, and cellular phone and data providers

gather more sensitive information about users, the

risk that warrantless surveillance of individuals’ lo-

cations will chill associational and expressive free-

doms only increases.

The location-tracking capabilities of cell phones

implicate unique First Amendment concerns. Over

time, changes in technology have made CSLI infor-

mation increasingly precise. These changes have in-

cluded “smaller and smaller {cell sites] .. . which

cover a very specific area, such as one floor of a

building, the waiting room of an office, or a single

home,” and “the advent of smartphone ‘pinging,’

whereby location data can be generated almost con-

tinuously...” United States v. Graham, 824 F.3d

421, 448 (4th Cir. 2016) (citations omitted). Thus,

like GPS data, CSLI is “qualitatively different” from

physical records because it “can reconstruct some-

one’s specific movements down to the minute, not on-

ly around town but also within a _ particular

building.” Riley v. California, 134 S. Ct. 2473, 2490

(2014). As the U.S. Court of Appeals for the 1).C.

Circuit stated when it considered the constitutionalli-

ty of warrantless GPS monitoring, “A person who

16

knows all of another’s travels can deduce whether he

is a weekly church goer, a heavy drinker, a regular

at the gym, an unfaithful husband, an cutpatient re-

ceiving medical treatment, an associate of particular

individuals or political groups—and not just ene such

fact about a person, but all such facts.” United

States v. Maynard, 615 F.3d 544, 562 (D.C. Cir.

2010), affd in part sub nom. United States v. Jones,

565 U.S. 400 (2012); see also State v. Karis, 70 A.3d

630, 632 (N.J. 2013) (New Jersey Supreme Court

noting that cell phones can reveal “not only where

individuals are located at a point in time but also

which shops, doctors, religious services, and political

events they go to, and with whom they choose to as-

sociate”’). Location data can therefore reveal exten-

sive sensitive information about political, religious,

and professional relationships. See Jones, 556 U.S.

at 415 (Sotomayor, J., concurring) (“GPS monitoring

generates a precise, comprehensive record of a per-

son’s public movements that reflects a wealth of de-

tail about her familia), political, professional,

religious, and sexual associations.”).

Amici agree with Petitioner that /tiley and Jones

support the conclusion that CSLI can reveal a wealth

of uniquely sensitive information. See Pet’r. Br. at

12, 38. ‘The disclosure of such closely-held infor-

mation may result in First Amendment harms. See

NAACP v. Alabama ex rel. Patterson, 357 U.S. 449,

462 (1958) (“Inviolability of privacy in group associa-

tion may in many circumstances be indispensable to

preservation of freedom of association, particularly

where a group espouses dissident beliefs.”). “Aware-

ness that the Government may be watching chills as-

sociational and expressive freedoms.” Jones, 565

17

U.S. at 416 (Sotomayor, J., concurring). Where sur-

veillance implicates private location information, it

can stifle dissent and the exercise of First Amend

ment rights. See Government Surveillance: U.S. Has

Long History of Watching White House Critics and

Journalists, Newsweek (Jun. 23, 1975; republished

Jul. 24, 2017) (stating that in 1969 CIA agents “took

photographs of White House demonstration Jeaders,

recorded their auto license plates and sometimes

even followed them home,” and that the “CIA also

followed newsmen tn 1967, 1971 and 1972 in order to

identify their sources”), https://perma.ce/B76N-3Z6B;

FBI releases files on columnist Jack Anderson, NBC

News (Oct. 11, 2008) (expiaining that government

documents obtained under the Freedom of Infor-

mation Act reflected “summaries of [a columnist’s]

movements while under surveillance, and FBl mem-

os detailing efforts to find his sources who leaked in-

formation from deep inside government agencies”),

https://perma.cc/XD9R-FVM 2.

First Amendment freedoms are protected not only

from “frontal attack,” but also from “being stifled by

more subtle governmenta! interference.” Bates v.

Little Rock, 361 U.S. 516, 523 (1960). Warrantless

acquisition of CSLI1 is the type of “subtle governmen-

tal interference” that can chill the robust exercise of

associational and expressive rights.

B. CSLI acquisition threatens the news-

gathering process.

CSLI can disclose particularly sensitive details

about the journalistic process: It can reveal the sto-

ries a journalist is working on before they are pub-

lished, where a journalist went to gather information

18

for those stories, and the identity of a journalist’s

sources. In part because location information can

reveal so much about the journalistic process, report-

ers seek to ensure the locations where they meet

their sources arc kept private. Exposure of sources

and journalistic methods can put sources’ jobs and

lives at risk, compromise the integrity of the news-

gathering process, and have a chilling cffect on re-

porting.

Among journalists, meeting in person with

sources is widely considered the most secure form of

communication. See Meeting in Person Most Com-

mon Way to Protect Sources, Pew Research Center

(Feb. 4, 2015) (noting that 59% of reporters surveyed

had met in person to protect a source),

https://perma.cc/84RN-FRZY. Confidentiality is a

critical component of the reporter-source relation-

ship, and effective newsgathering depends on an ex-

pectation of privacy in the location, time, and

duration of those confidential meetings and commu-

nications. Communicating with confidential sources

is a core journalistic practice and a necessary feature

of investigative journalism. The confidentiality of

these in-person meetings is compromised when law

enforcement can obtain information about journal-

ists’ or sources’ whereabouts without a warrant.

Some of the most important reporting on the

functioning of government has depended on confi-

dential sources. One of the most famous confidential

sources, “Deep ‘l'hroat,” provided information to

Washington Post reporters Bob Woodward and Carl

Bernstein, cxposing the Watergate scandal. More

recently, news organizations have used confidential

sources to report on harsh interrogations techniques

19

cunducted by U.S. law enforcement, see, e.g., Scott

Shane, David Johnston, James Risen, Secret U.S.

Kindorsement of Severe Interrogations, N.Y. Times

(Oct. 4, 2007), http://nyti.ms/ldkyMgF; the Central

Intelligence Agency's use of a network of secret pris-

ons for terrorism suspects, see, e.g., Dana Priest, CIA

Holds Terror Suspects in Secret Prisons, Wash. Post

(Nov. 2, 2005), http://wapo.st/Ud8UD; and an illegal

wiretapping program at the National Security Agen-

cy, see, e.g., James Risen & Eric Lichtblau, Bush Lets

U.S. Spy on Callers Without Courts, N.Y. Tumes (Dec.

16, 2005), http://nyti.ms/nelMIBR. In the last year,

reporters have relied upon confidential sources to in-

form the public about everything from foreign policy,

see, e.g., Souad Mekhennet and Joby Warrick, U.S.

Increasingly Sees Iran’s Hand in the Arming of Bah-

raini Militants, Wash. Post (Apr. 1, 2017),

https://perma.ce/ZUA4-8HV7, to foreign threats to

the 2016 presidential election, see, e.g., Eric

Lichtblau, C.1.A. Tracked Russian Prying in the

Summer, N.Y. Times (Apr. 7, 2017),

https://nyti.ms/°oOwT Bz.

As these examples demonstrate, investigative re

porting based on confidential sources is a necessary

part of the fabric of an informed democratic society

and fosters the civic literacy that forms the bedrock

of democratic discourse. According to the Sucicty of

Professional Journalists, although identifying

sources is ideal, “[a]Jnonymous sources are sometimes

the only key to unlocking that big story, throwing

back the curtain on corruption, fulfilling that jour-

nalistic missions of watchdog on the government and

informant to the citizens.” Michael Farrell, Anony-

mous Sources, SPJ Ethics Committee Position Paper,

20

https://perma.cc/5BQB-SRA3. Indeed, without confi-

dential sources, journalists “would be relying on the

official side of the story, and the official side of a sto-

ry isn’t always the whole side.” Lana Sweeten-

Shults, Anonymous sources vital to journalism, USA

Today (Feb. 27, 2017), https://perma.cc/AV7V-Z4K8.

Although confidentiality is of utmost importance,

contemporary investigative newsgathering often de-

pends on a smartphone. Cell phones now serve as

“cameras, video players, rolodexes, calendars, tape

recorders, libraries, diaries, albums, televisions,

maps, or newspapers”—all tools that are integral to

the journalistic profession. Riley, 134 S. Ct. at 2489.

Journalists use cell phones to email sources and edi-

tors, write pitches, record interviews, capture photos

and video to accompany stories, conduct research,

monitor breaking news, and engage with their read-

ership on platforms such as Twitter and Facebook.

leaving a cell phone behind while conducting field

research and meeting with sources on a regular basis

would severely hamper the goal of gathering details

about a story.

Journalists are aware that the government is in-

creasingly using electronic surveillance in general—

and specifically the Stored Communications Act

(“SCA”), 18 U.S.C. § 2703(d), orders at issue in this

case—to target cell phones and similar communica-

tion devices. See Spencer S. Hsu, Court: Warrantless

requests to track cellphones, Internet use grew seven-

fold in D.C. in three years, Wash. Post (Jul. 18, 2017),

https://perma.cc/W6TN-VVGW (explaining that war-

rantless SCA requests to the U.S. District Court for

the District of Columbia grew sevenfold in the past

three years). Concerns about the vast scope of sur-

21

veillance has already caused some journalists to take

steps to try te avoid that surveillance—including lim-

iting their use of important tools that are critical to

newsgathering. See With Liberty to Monitor All:

How Large-Scale US Surveillance is Harming Jour-

nalism, Law, and American Democracy, Human

Rights Watch (Jul. 28, 2014), https://perma.cc/L.J9E-

88YS (noting in a 120-page study that several jour-

nalists reported turning off their phones, removing

phone batteries, or leaving phones behind when

mecting in person with sources); see also Dan Gill-

more, Beyond Encryption, Colum. J. Rev. (May 7,

2012), https://perma.cc/43DN-SNPN (“If you do need

to talk to [a suurce] using a cell phone, Fed-Ex them

a prepaid phone, and tell them not to use it, or even

turn it on, near their home/office.”).

Surveillance has also made sources less willing to

inform reporters about issues of public concern. In

2013, for example, the Associated Press learned that

the Justice Department had seized records from

twenty AP telephone lines used by more than 100 AP

reporters and editors. See Mark Sherman, Gov't Ob-

tains Wide AP Phone Records in Probe, Associated

Press (May 13, 2013), https://perma.cc/2P8J-RTPYT.

AP President and CEO Gary Pruitt discussed the

impact of the surveillance during a speech at the Na-

tional Press Club: “In some cases, government em-

ployees that we once checked in with regularly will

no longer speak to us by phone and some are reluc-

tant to meet in person.” Lindy Royce-Bartlett, Leak

Probe Has Chilled Sources, AP Exec Says, CNN (Jun.

19, 2013), https://perma.cc/VU8T-6H UP.

As Justice Marshall wrote nearly forty years ago

in his dissenting opinion in Smith v. Maryland,

22

“Permitting governmental access to telephone rec

ords on less than probable cause may [ ] impede cer-

tain forms of political affiliation and journalistic

endeavor that are the hallmark of a truly free socie-

ty.” 442 U.S. 735, 751 (1979) (Marshall, J., dissent-

ing). It is unsurprising that fear of warrantless

location tracking chills reporter-source communica.

tions and impedes newsgathering, harming the flow

of information to the public.

Ill. Fourth Amendment protections should be

rigorously applied when the government

seeks to obtain CSLI because First

Amendment interests are at stake.

Amici agree with Petitioner that the Fourth

Amendment should apply when the government

seeks to obtain CSLI. In addition to the reasons set

forth by Petitioner, Fourth Amendment protections

should also apply because CSLI implicates First

Amendment rights.

Consistent with the historic relationship between

the First and Fourth Amendments, see supra Section

1, this Court has found that where the materials to

be searched “may be protected by the First Amend-

ment, the requirements of the Fourth Amendment

must be applied with ‘scrupulous exactitude.”

Zurcher, 436 U.S. at 564 (quoting Stanford, 379 U.S.

at 485). In Zurcher, this Court considered the consti-

tutionality of a search warrant authorizing the

search of a newspaper's office for evidence of a crime.

Id. at 563. The Court held that, under the particular

facts of that case, the Fourth Amendment’s warrant

requirements were sufficiently protective of First

Amendment rights. Jd. Specifically, this Court stat-

23

ed that “[p]Jroperly administered, the preconditions

for a warrant—probable cause, specificity with re-

spect to the place to be searched and the things to be

seized, and overall reasonableness—should afford

sufficient protection against the harms that arc as-

sertedly threatened by warrants for searching news-

paper offices.” /d. at 565. These Fourth Amendment

safeguards are the minimum necessary for protect-

ing against First Amendment harms.

The form of process at issue in this case—an or-

der under the Stored Communications Act—lacks

any Fourth Amendment safeguards at all. SCA or-

ders for historical CSI do not require probable

cause, reasonableness, or specificity with respect to

the scope of the search. Rather, they require only a

showing of “specific and articulable facts” demon-

strating that the material sought is “relevant and

material” to an investigation. 18 U.S.C. § 2703(d).

This lower standard impermissibly permits the gov-

ernment to obtain CSLI, which implicates associa-

tional, expressive, and newsgathering activities,

without satisfying the Fourth Amendment safe-

guards found in Zurcher to be sufficient to protect

First Amendment rights

IV. The U.S. Court of Appeals for the Sixth

Circuit's application of the third-party

doctrine to CSLI records imperils the free

and unfettered exercise of First Amend-

ment rights.

The U.S. Court of Appeals for the Sixth Circuit,

below, held that the government’s collection of Peti-

tioners CSLI was not a Fourth Amendment-

protected search because Petitioner had no reasona-

24

ble expectation of privacy in CSLI created and main-

tained by a cellular service provider. United States

v. Carpenter, 819 F.3d 880, 889-90 (6th Cir. 2016).

In reaching this holding, the divided three-judge

panel relied upon this Court’s decisions in Smith,

442 U.S. 735, and United States v. Miller, 425 U.S.

435 (1976). Jd. at 887-89; see also United States v.

Davis, 785 F.3d 498 (Lith Cir. 2015) (en banc), cert.

denied, 136 S. Ct. 479 (2015), (similarly holding that

Smith and Miller lead to the conclusion that there is

no Fourth Amendment protection for CSLI records);

Graham, 824 F.3d 421 (same); Jn re Application of

the U.S. for Historical Cell Site Data, 724 F.3d 600

(5th Cir. 2013) (same). Compare In re Application of

the U.S. for an Order Directing a Provider of Elec.

Comme'n Serv. To Disclose Records to Gov't, 620 F.3d

304 (3d Cir. 2010) (distinguishing Smith and holding

that a magistrate judge has the discretion to require

a warrant for CSLI). Contrary to this Court’s in-

struction that Fourth Amendment requirements be

applied with “scrupulous exactitude” when law en-

forcement seeks to obtain material] that “may be pro-

tected by the First Amendment,” Zurcher, 436 U.S.

at 564, the panel’s decision interpreted the so-called

third-party doctrine so broadly as to seemingly fore-

close any application of the Fourth Amendment’s

protections to CSLI.

In Miller, this Court held that a bank customer

has no reasonable expectation of privacy in checks

and deposit slips held by a bank because that infor-

mation was voluntarily “revealed to a third party”—

i.e., the bank. See Miller, 425 U.S. at 442. In Smith

the Court applied similar reasoning in the context of

a telephone company, finding no “legitimate expecta-

25

tion of privacy in the numbers [petitioner] dialed”

over a short period of time, which the government

obtained from the phone company using a subpoena.

442 U.S. at 742.

Lower courts have drawn from these cases the

proposition that individuals do not have a Fourth

Amendment protected interest in information volun-

tarily conveyed to third parties—-what has come to be

known in Fourth Amendment jurisprudence as the

third-party doctrine. See Graham, 824 F.3d at 425

(citing Smith and Miller to explain the “rule—the

third-party doctrine,” which states “that an individu-

al enjoys no Fourth Amendment protection ‘in infor-

mation he voluntarily turns over to [a] third part[y]”

(internal citations omitted)); Davis, 785 F.3d at 512.

As this Court has recognized, however, a “mechani-

cal interpretation” of the third-party doctrine, espe-

cially in the context of advancing technology, can

erode constitutional rights. Kyllo v. United States,

533 U.S. 27, 35 (2001); see also Davis, 785 F.3d at

537 (Martin, J., dissenting) (describing the “slippery

slope that would result from a wooden application of

the third-party doctrine”).

As explained above, First Amendment rights are

placed in jeopardy when law enforcement can, broad-

ly-speaking, invade the privacy of professional, polit-

ical, and religious associations without a warrant.

See supra Section Il. And an overbroad application

of the third-party doctrine is particularly pernicious

to the press. Although the third-party doctrine is

based on the premise that partics voluntarily convey

information to third-party companies, journalists,

like other cell phone users, do not “voluntarily” share

their location with a cell phone provider “in any

26

meaningful way,” Jn re Application of the U.S. for an

Order Directing a Provider of Elec. Commen Serv. to

Disclose Records to the Gov't, 620 F.3d at 317, be-

cause there is no action in placing or receiving a call

that would alert the journalist that he or she is con-

veying location information to the wireless carrier.

Although journalists are aware of location tracking,

they and their sources may be unaware of the extent

and specifics of the surveillance—namely, that cell

service providers obtain and store CSLI. See id. (“[I}t

is unlikely that cell phone customers are aware that

their cell phone providers collect and store historical

location information.”).

Even if journalists are aware that service provid-

ers collect historical CSI.1, journalists are dependent

on their cell phones to contact sources, communicate

with editors, disseminate news, and generally en-

gage in the craft of contemporary newsgathering.

See Graham, 825 F.3d at 445-46 (Wynn, J., dissent-

ing in part and concurring in the judgment) (finding

that CSLI is not voluntarily conveyed by a cell phone

user in part because “CSLI is purely a function and

product of cellular telephone technology, created by

the provider’s system nctwork . . .”) (quoting Com-

monwealth v. Augustine, 4 N.E.3d 846, 862 (2014)).

Beeause third-party cell service companies obtain

users’ location data “for the specific purpose of direct-

ing the routing of information,” United States v. For-

rester, 512 F.3d 500, 510 (9th Cir. 2008), journalists

necessarily must allow cell service companies to ob-

tain their CSLI in order to use a cell phone. As Jus-

tice Sotomayor noted in Jones, the third-party

doctrine is “ill suited to the digital age, in which peo-

ple reveal a great deal of information about them-

27

selves to third parties in the course of carrying out

mundane tasks.” 565 U.S. at 417 (Sotomayor, J.,

concurring). Journalists in particular reveal a great

deal of information when using cell phones, not only

in the course of carrying out routine tasks, but also

in the course of gathering and disseminating the

news.

As this Court previously recognized, magistrate

judges assessing warrant applications play a crucial

role in assuring that “the requirements of specificity

and reasonableness are properly applied, policed,

and observed” to protect First Amendment rights,

including those of journalists. Zurcher, 436 U.S. at

566. When the third-party doctrine is expanded to

permit warrantless acquisition of location data, that

vital check on government overreach that is essential

to enabling the full-throated exercise of First

Amendment rights disappears. A Fourth Amend-

ment warrant, and nothing less, is necessary to pro-

tect the interests of the press and public in the

context of long-term CSLI tracking. “No less a

standard could be faithful to First Amendment frec-

doms.” Stanford, 379 U.S. at 485.

28

CONCLUSION

For the foregoing reasons, amici respectfully urge

this Court to reverse the U.S. Court of Appeals for

the Sixth Circuit opinion beiow.

August 14, 2017

Respectfully submitted,

Bruce D. Brown

Counsel of Record

Caitlin Vogus

Selina MacLaren

THE REPORTERS COMMITTEE

FOR FREEDOM OF THE PRESS

1156 15th St. NW, Suite 1250

Washington, DC 20005

bbrown@rcfp.org

(202) 795-9300

* Additional counse! for amici

are listed in Appendix A.

A-]

APPENDIX A

Additional counsel for Amici Curiae

Kevin M. Goldberg

Fletcher, Heald & Hildreth, PLC

1300 N. 17th St., 11th Floor

Arlington, VA 22209

Counsel for American Society of News Editors

Counsel for Association of Alternative Newsmedia

David Snyder

First Amendment Coalition

534 Fourth St., Suite B

San Rafael, CA 94901

James Cregan

Executive Vice President

MPA ~— The Association of Magazine Media

1211 Connecticut Ave. NW Suite 610

Washington, DC 20036

Mickey H. Osterreicher

1100 M&T Center, 3 Fountain Plaza,

Buffalo, NY 14203

Counsel for National Press Photographers Associa-

tion

Robert A. Bertsche (BBO #554333)

Prince Lobel Tye LLP

100 Cambridge Street

Boston, MA 02114

Counsel for the New England First Amendment Coa-

lition

Kurt Wimmer

Covington & Burling LLP

850 10th Street NW

Washington, DC 20001

Counsel for the News Media Alliance

Barbara L. Camens

Barr & Camens

1025 Connecticut Ave., NW

Suite 712

Washington, DC 20036

Counsel for The Newspaper Guild - CWA

Laura R. Handman

Alison Schary

Davis Wright Tremaine LLP

1919 Pennsylvania Avenuc, NW

Suite 800

Washington, DC 20006

Counsel for Online News Association

Thomas R. Burke

Davis Wright Tremaine LLP

Suite 800

500 Montgomery Strect

San Francisco, CA 94111

Counsel for Online News Association

Kathleen A. Kirby

Wiley Rein LLP

1776 K St., NW

Washington, DC 20006

Counsel for Radio Television Digital News Associa-

tion

A-3

Bruce W. Sanford

Mark I. Bailen

Baker & Hostetler |.LP

1050 Connecticut Ave., NW

Suite 1100

Washington, DC 20036

Counsel for Society of Professional Journalists