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

wVuprearie WOUTL, US.

FILED

RECORD AUG 14 2017

AND :

BR EFS No. 16-402 L_OFFICE OF THE CLERK _|

IN THE

Supreme Court of the Anited States

TIMOTHY IVORY CARPENTER,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

BRIEF OF AMICUS CURIAE

THE RUTHERFORD INSTITUTE

IN SUPPORT OF PETITIONER

JOHN W. WHITEHEAD D. ALICIA HICKOK

DOUGLAS R. MCKUSICK Counsel of Record

THE RUTHERFORD INSTITUTE MARK D. TATICCHI

P.O. Box 7482 DRINKER BIDDLE &

Charlottesville, VA 22906 REATH LLP

(434) 978-3888 One Logan Square

Philadelphia, PA 19103

(215) 988-2700

Alicia.Hickok@dbr.com

Counsel for Amicus Curiae

August 14, 2017

a ae

WiLSsonN-EPES PRINTING CO., INC. — (202) 788-0096 - WASHINGTON, D. C. 20002

QUESTION PRESENTED

Whether the warrantless seizure and search of his-

torical cell phone records revealing the location and

movements of a cell phone user over the course of 127

days is permitted by the Fourth Amendment.

(1)

TABLE OF CONTENTS

Page

QUESTION PRESENTED ...............:0::0c:csseeeeeees i

TABLE OF AUTHORITIES................0000000000...... iv

INTEREST OF AMICUS CURIAE ..................4.. l

INTRODUCTION AND SUMMARY

o_O ES oe 2

P.O een cn eee er RANA 2

1. THE COURT OF APPEALS FAILED TO

ASSESS CONTEMPORARY EXPECTA-

TIONS OF PRIVACY IN ITS FOURTH

AMENDMENT ANALYSIS.....................4. 2

Il. THE COURT OF APPEALS FAILED

TO FACTOR THE NATURE OF THE

GOVERNMENT'S REQUEST INTO ITS

FOURTH AMENDMENT ANALYSIS... 10

SIE ciobshivinencilecaanabissvadabiannndnisadenee dacs 15

(iii)

lV

TABLE OF AUTHORITIES

CASES Page(s)

Corley v. United States,

I SI cnc ccicarnnsdnniisenananieasiente 13

Katz v. United States,

I I in accigdemsiainsiiclnimie )

Kyllo v. United States,

I ieee 9,12

Smith v. Maryland,

ig ee 3,9

United States v. Carpenter,

819 F.3d 880 (6th Cir. 2016)............. 2,3, 11, 14

United States v. Jones,

Se es SE icctccccccccsssccanssncensenssens 3, 4, 10

United States v. Miller,

Se a cstiecnecemnnstnnccccesssssveneess 3

CONSTITUTION

I, Cee QU BY oscesiccncn .ctrccnivssrercneensng passim

STATUTES

a AIRES Sen 2, 12, 13, 14

OTHER AUTHORITIES

Bank of America, U.S. Consumer Privacy

Notice, https://www.bankofamcrica.com/

privacy/ consumer-privacy-notice.go (last

CREE FAME, F, BRED cecccossrscccsesccccesessavsesees 8

v

TABLE OF AUTHORITIES—Continued

Page(s)

Facebook, Inc., Quarterly Report (Form 10-

Q), available at http://d18rn0p25nwr6d.

cloudfront.net/CIK-000 132680 1/dffb94d 1 -

5alb-4ec2-8eb7-5690 1be40efd. pdf............

Facebook.com, Privacy Basics, https://

www facebook.com/about/basics/usr1 (last

CS SEE, 0 5 SEINE D sctccnnessecncsnssentscessscconse

Facebook.com, Privacy Basics: Deleting

Posts, https:/Awww.facebook.com/about/

basics/manage-your-privacy/deleting-posts

(last visited Aug. 7, 2017) ..................c0+00

Facebook.com, Privacy Basics: Friend List,

https:/Awww.facebook.com/about/basics/ma

nage-your-privacy/friend-list#1 (last

NE: Gi ITE Ccericeiehiepecnnsectnnsestnnens

Facebook.com, Privacy Basics: Likes &

Comments, https://www.facebook.com/abo

ut/basics/manage-your-privacy/my-likes-

and-comments#2 (last visited Aug. 7,

Facebook.com, Privacy Basics: Posts,

https:// www.facebook.com/about/hasics/

manage-your-privacy/posts#11 (last

le . ) RCOSIs

Facebook.com, Privacy Basics: Profile,

https:/Avww.facebook.com/about/basics/ma

nage-your-privacy/profile#6 (last visited

ge pec saan Sanaa Rano

6,7

4-5

vi

TABLE OF AUTHORITIES—Continued

Page(s)

Facebook.com, Privacy Basics: Profile,

https:/Avwww.facebook.com/about/basics/ma

nage-your-privacy/profile #10 (last visited

PN Fe I D tidintsndiaasnarisicnatinteecnisbingbiaiiets

Facebook.com, Privacy Basics: Profile,

https://www.facebook.com/about/basics/ma

nage-your-privacy/profile#12 (last visited

BR ar cia cicecanbein sodheekcccctignstiasnnis

Google, Google+ Help: Using Circles on

Google +, https://support.google.com/pl

us/answer/6320407?7hl=en&ref_topic=6320

382 (last visited Aug. 7, 2016)..................

Government of Canada, Statistics Canada,

Sept. 28, 2016, http://www.statcan.gc.

ca/tables-tableaux/sum-som/101/cst0 V/de

moO2a-eng.htm (last visited Aug. 9,

a eigeaalecisasdabemessaisies

Instagram, How Do I Set My Photos and

Videos to Private So That Only Approved

Followers Can See Them?, https://help.

instagram.com /448523408565555 (last

SNE Wig BEIT scrncnenccenenconsesnsconsenaneds

InterContinental Hotels Group, InterCon-

tinental Hotels Group Privacy Policy,

https://www.ihg.com/hotels/gb/cn/global/

customer _care/privacy_policy#4 (last

visited Aug. 7, BOUT) .....00...0c-scsc0sce-cescesseee-

Vil

TABLE OF AUTHORITIES—Continued

Page(s)

Kaiser Permanente, Privacy Statement,

https://healthy.kaiserpermanente.org/he

alth/care/consumer/ancillary/ut/p/aVhZ

BBj4IwEIV_iwfOM8pGgRuSuFZOxWgE

ezEVG2xS26ZOzPLvVYxHw7tNinlvMg

84VMCNukKtGkLJG6NfMx8fZYrueTocp

rn_iCNkqm2fsL8enoIQF8EbbU2c-XIhcE

mCAtTUkDXI]pztJLHyDwmlonobopkkdn

tag VvPUxZMT1w3Trf-pD_PuMt643XJ2h

KosiSZbD_aScT1ZpHyLe4cLUSmvh2-f_v

KsIQ7bpKvotxogsynf65Ps5DxNHH8EUpg

rtGhajvS LIGFLNm8AAgXXxu/d15/d5/L2D

bisevZ OFBIS9nQSE?/ (last visited Aug.

Rip, MET PD cacsccndsmnnniinnaminadsedmancssusetanenaneserensees 8

LinkedIn, LinkedIn Help: Visibility of

Your Updates, Posts, and Recent

Activity, https://www.linkedin.com/help/

linkedin/answer/ 61030 (last visited Aug.

DET cc cctaskcedincsnsiaiicionsevndiianavadianomanasiaes 6

Macy’s, Inc., Macy’s and macys.com Notice

of Privacy Practices, https:/Awww.custo

merservice-macys.com/app/answerws/detail

/a_id/595/session/L2F2LzEvdGItZS8xNT

AyMTUwMTAwL3NpZC9SIWTdTLUF wb

g%3D%3D#pref (last visited Aug. 7,

UNE Wcchanalentais taheaninishes sladbnunepbabrdasbedasesddsianite 8

U.S. Census Bureau, Population Distribu-

tion and Change: 2000 to 2010, Mar.

2011, avail-able at https:/Awww.census.

gov/prod/cen2010/briefs/c2010br-01.pdf

(last visited Aug. 9, 2017)....................0065 7

viii

TABLE OF AUTHORITIES—Continued

Page(s)

Verizon, Privacy Policy for Fios and Other

Fiber-to-the-Premises Customers, http://

www.verizon.com/about/privacy/fios-priv

acy-policy (last visited Aug. 7, 2017)........ 8

INTEREST OF AMICUS CURIAE’

The Rutherford Institute is an inte” ational non-

profit civil liberties organization headquartered in

Charlottesville, Virginia. Founded in 1982 by its

President, John W. Whitehead, the Institute provides

pro bono legal representation to individuals whose

civil liberties are threatened and educates the public

about constitutional and human rights issues.

As part of its mission, The Rutherford Institute

resists the erosion of fundamental civil liberties that

many would ignore in a desire to enhance the ability

of governmental authorities to detect, deter, and

prosecute criminal activity. The Rutherford Institute

believes that according ever increasing power and

authority to law enforcement only creates a false sense

of security while sanctioning unnecessary intrusions

upon the private lives of private citizens.

The Rutherford Institute is interested in this case

because it is committed to ensuring the continued

vitality of the Fourth Amendment. Affirming the

judgment of the Court of Appeals would undercut the

Amendment’s protections by enabling long-term surveil-

lance of individuals—and the concomitant invasion of

privacy that such surveillance entails—without first

obtaining a warrant from a neutral magistrate.

‘ Al) parties to this matter have granted blanket consent for

amicus curiae briefs in support of either or neither party. Peti-

tioner filed such consent on July 11, 2017, and Respondent filed

such consent on July 26, 2017. The requirements of Rule 37.2(a)

of the rules of this Court are satisfied by these filings. No counsel

for a party authored this brief in whole or in part, and no party

ur counsel for a party made a monetary contribution intended to

fund the preparation or submission of this brief. No one other

than amicus curiae, its members, or its counse] made a monetary

contribution to the preparation or submission of this brief.

2

INTRODUCTION AND

SUMMARY OF ARGUMENT

In addressing petitioner's Fourth Amendment

challenge, the Court of Appeals framed the correct

question: Did petitioner have a reasonable expecta-

tion of privacy in the 127 days’ worth of cell-site loca-

tion information the government obtained from his

wireless carrier? See United States v. Carpenter, 819

F.3d 880, 886 (6th Cir. 2016).

The court went astray, however, in failing to

properly contextualize that inquiry. First, it erred by

failing to ask whether today, in the here and now,

society would be prepared to accept petitioner's pri-

vacy expectations as reasonable.

Second, it failed to take account of the nature of the

government’s request—a demand for four months’

worth of petitioner’s movements—-a factor which the

text and structure of 18 U.S.C. § 2703 clearly

contemplates being taken into account.

In light of these errors, the Sixth Circuit’s judgment

must be reversed.

ARGUMENT

I. THE COURT OF APPEALS FAILED TO

ASSESS CONTEMPORARY EXPECTA-

TIONS OF PRIVACY IN ITS FOURTH

AMENDMENT ANALYSIS.

The Court of Appeals’ decision in this case is the

product of a flawed analytical framework. Rather

than test petitioner’s Fourth Amendment claim by

assessing the present-day social and cultural expecta-

tions regarding the privacy of individuals’ movements

in public, the Sixth Circuit analogized the facts of this

case to those of disparate decisions—often decades

3

vid—that arose in a much different factual, social,

legal, and technological context than that which pre-

vails today. See Carpenter, 819 F.3d at 887-889

(citing, inter alia, Smith v. Maryland, 442 U.S. 735

(1979), and United States v. Miller, 425 U.S. 435, 443

(1976)). That was error.

Instead, the Court of Appeals should have straight-

forwardly applied the test that this Court’s cases

command: Did Timothy Carpenter possess a reason-

able expectation that his (approximate) location and

(general) movements would remain free from govern-

mental oversight? Cf. United States v. Jones, 565 U.S.

400, 430 (2012) (Alito, J., concurring in the judgment)

(“The best that we can do in this case is to apply

existing Fourth Amendment doctrine and to ask

whether the use of GPS tracking in a particular case

involved a degree of intrusion that a reasonable person

would not have anticipated.”).

If the Court of Appeals had not focused its analysis

exclusively on the facts of prior cases and had instead

also assessed current social understandings, it would

have answered that query in the affirmative and held

that a request for cell-site location data must, in the

typical case, be supported by a warrant issued by a

neutral magistrate upon a finding of probable cause.

The discussion that follows canvasses some of the

contextual factors not considered by the Court of

Appeals and explains why they compel the conclusion

‘hat petitioner’s rights were traversed by the govern-

ment’s warrantless procurement of his cell-site location

information.

1. The Court of Appeals erred by ignoring the sig-

nificance of present-day social expectations in the

Fourth Amendment analysis. As several Members of

4

this Court recognized only a few Terms ago, time and

technology change the public’s perception of what 1s—

and should be—safe from prying governmental eyes.

See Jones, 565 U.S. at 415 (Sotomayor, J., concurring)

(invoking the “evolution of societal privacy expecta-

tions” in light of “technological advances”); id. at 427

(Alito, J., concurring in the judgment) (“Dramatic

technological change may lead to periods in which

popular expectations are in flux and may ultimately

produce significant changes in popular attitudes.”).

In his concurrence in the judgment in Jones, Justice

Alito posited one way in which technological change

can shift that balance, suggesting that “|nlew tech-

nology may provide increased convenience or security

at the expense of privacy, and many people may find

the tradeoff worthwhile.” /d. at 427. People wishing

to fly in an airplane, for example, agree to endure

magnetometers, pat-down searches, and x-ray inspec-

tion of their luggage.

But the interaction between technology and expecta-

tions of privacy can also be less linear than the zero-

sum tradeoff illustrated above might suggest. For

example, technology can influence social under-

standings of how—and how broadly—an individual’s

information will be distributed when shared with a

third party.

2. Social media provides a useful illustration. Take

Facebook. The website’s privacy guide assures users:

“You have control over who sees what you share

on Facebook.” Facebook, Privacy Basics, https://

www.facebook.com/about/basics/usr1 (last visited

Aug. 7, 2017); Facebook, Privacy Basics: Likes &

Comments, https:/Awww.facebook.com/about/basics/man

age-your-privacy/my-likes-and-comments#2 (last visited

Aug. 7, 2017) (“The person who posts something has

5

control over the audience who can see it.”). Thus, a

Facebook user can publish information to a pre-

populated list of recipients (e.g., all individuals that

the user has designated as “Close Friends”) or create

a customized list of recipients. Facebook, Privacy

Basics: Posts, https://www.facebook.com/about/basics/

manage-your-privacy/posts#11 (last visited Aug. 7,

2017); see also Facebook, Privacy Basics: Friend

List, https://www.facebook.com/about/basics/manage-

your-privacy/friend-list#1 (last visited Aug. 7, 2017)

(informing users that they can restrict who may view

a list of their Facebook contacts (i.e., “fricnds”)).

The website also allows users to see what their

individual profile and pages look like—either to a class

of other Facebook members (e.g., members that are

not designated as a “Friend” of the user) or to an

individual Facebook member. Facebook, Privacy

Basics: Profile, https://www.facebook.com/about/bas

ics/manage-your-privacy/profile#6 (last visited Aug. 7,

2017). If the user learns that a third party can sec

information the user doesn’t want that third party to

see, that information can be restricted or deleted.

Facebook, Privacy Basics: Profile, https://www-face

book.com/about/basics/manage-your-privacy/profile #10

(last visited Aug. 7, 2017). Similarly, if a Facebook

user “post/s] something and later decide[s] [he or she]

do[es]n’t want people to see it, [the user] can delete it.”

Facebook, Privacy Basics: Deleting Posts, https://

www.facebook.com/about/basics/manage-your-privacy/

deleting-posts (last visited Aug. 7, 2017).

Indeed, users even have the ability to control who

can see information about them that is posted by a

different Facebook user. Facebook, Privacy Basics:

Profile, https:/Awww.facebook.com/about/basics/man

age-your-privacy/profile#12 (last visited Aug. 7, 2017).

fS

Vv

And that’s just one social media site. Others afford

users a similar degree of control over the information

they share. See, e.g., Google, Google+ Help: Use

Circles on Google+, https://support.google.com/plus/an

swer/6320407?hl=en&ref_topic=6320382 (last visited

Aug. 7, 2017) (explaining that users can add other

Google+ members to a “circle”—.e., a collection of

individuals who share something in common (being

members of the user’s family, fellow alumnae of her

university, etc.\—and then choose which circle(s) will

see each piece of information the user posts on

Google+); Instagram, How Do I Set My Photos and

Videos to Private So That Only Approved Followers

Can Sec Them?, https://help.instagram.com/4485234

08565555 (last visited Aug. 7, 2017) (explaining that

users can restrict access to a list of “followers” (z.e.,

other Instagram members) whom the user must

affirmatively approve before they can see information

the user has posted to the social media site); LinkedIn,

LinkedIn Help: Visibility of Your Updates, Posts, and

Recent Activity, https:/Awww.linkedin.com/help/linked

in/answer/61030 (last visited Aug. 7, 2017) (explaining

that “[wlhen you share a post on your LinkedIn feed,

you can choose whether to share your post publicly or

to your connections only”).

It is clear, moreover, that these media touch and

affect an overwhelming number of the “people” with

whom the Fourth Amendment is concerned. As of Q2

2017, Facebook alone boasted an average monthly

user basc of 236 million people in the U.S. and

Canada. Facebook, Inc., Quarterly Report (Form 10-

Q) at 22 (July 27, 2017), available at http://d18rn0p25

nwr6d.cloudfront.net/CIK-000132680 1/dffb94d1-5a1b-4

ec2-8eb7-56901be40efd.pdf. In other words, even

subtracting out one Facebook account for each of the

7

36.3 million residents of Canada,’ that still leaves

approximately 200 million accounts for the United

States—nearly 65 percent of the country’s population

as of the last decennial census.’

3. In a similar vein, mobile phones and their appli-

cations (“apps”) also offer users fine-grained control

over dissemination of the users’ information—and, in

particular, the users’ location information. Specifi-

cally, a user can decide which of the apps on his or her

phone (if any) will be able to ascertain the phone’s—

and hence the user’s—geographic location. See, e.g.,

Applic, Inc., About Privacy and Location Services

in iOS 8 and Later, https://support.apple.com/en-us/

HT203033 (last visited Aug. 11, 2017) (“You can

individually control which apps and system services

have access to Location Services data.”).

This allows users to exercise fully customizable con-

trol over the disclosure of their location information.

So, for example, they may opt to allow the phone’s ride-

sharing (e.g., Uber), navigation (e.g., Google Maps), or

weather apps to know where the user is located, but

deny that information to social networking apps like

Facebook or Instagram.

4. These contemporary expectations of nuanced

control over the degree to which one’s information will

* Government of Canada, Statistics Canada, Sept. 28, 2016,

http://www.statcan.gc.ca/tables-tableaux/sum-som/01/cst0 /dem

002a-eng.htm (last visited Aug. 9, 2017).

4 U.S. Census Bureau, Population Distribution and Change:

2000 to 2010, Mar. 2011, at 1, available at https://www.cen

sus.gov/prod/cen2010/briefs/c2010br-01.pdf (last visited Aug. 9,

2017). Were that not enough, Faccbook also reports that, on cach

day during Q2 2017, an average of 183 million users logged onto

its site. Faccbook, Inc., Quarterly Report (Form 10-Q) at 21 (July

27, 2017).

8

be disseminated and the uses to which it will be put is

not just a function of technology and the social media

it has empowered. To the contrary, credit card issuers,‘

national retail chains,’ global hotel conglomerates,°

cable companies,’ health care providers,’ and count-

less other actors in the public sphere all disclose to

individuals how and under what circumstances the

information they provide may be shared with third

parties—and how and to what extent the individual

may limit further disclosure of that information (e.g.,

by precluding a merchant from providing the individ-

ual’s contact information to a third-party marketing

organization).

“ Bank of America, U.S. Consumer Privacy Notice, https://

www.bankofamcrica.conV/privacy/consumer-privacy-notice.go (last

visited Aug. 7, 2017).

5 Macy’s, Inc., Macy’s and macys.com Notice of Privacy

Practices, https//www.customerservice-macys.com/app/answers/

detail/a_id/595/session/L2F2LzEvdGitZS8xNTAyMTUwMTAwL

3N pZCSIWTATLUFwhe%3D%3D4pref (last visited Aug. 7,

2017).

® InterContinental Hotels Group, InterContinental Hotels

Group Privacy Policy, https://www .ihg.com/hotels/gb/en/global/

customer_care/privacy_policy#4 (last visited Aug. 7, 2017).

" Verizon, Privacy Policy for Fios and Other Fiber-to-the-

Premises Customers, http://www.verizon.com/about/privacy/fios-

privacy-policy (last visited Aug. 7, 2017).

* Kaiser Permanente, Privacy Statement, https://healthy.

kaiserpermanente.org/health/carc/consumer/ancillary/!ut/p/a V/h

ZBBj4IlwEIV_iwfOM8pGgRuSuFZ0xWgEezEVG2xS26ZOzPLvV

YxHw7tNin lvMg84V MCNuKtGkLJG6NfMx8fZYrueTocprn_iC

Nkqm2fsL8enol QF8EbbU 2c-XIhcEmCAtTUkDXlpztJ LHyDwmlo

nobopkkdntaqVvPUxZMT 1w3Trf-pD_PuMt643XJ2hKosiSZbD_aS

cT1ZpHyLe4cLUSmvh2-f vKsIQ7bpKvotxogsynfS Ps5 DxNHH8EU

pertGbajvSlIGFLNm8AAgXXxu/dl5/d5/1.2dBISEVZ0FBIS9nQSEh/

(last visited Aug. 7, 2017).

9

5. The above examples highlight just a few facets

of what a proper, modern-context-sensitive analysis

would look to when attempting to ascertain the

reasonableness of an individual’s expectation of

privacy in his or her cell-site location information. But

even this subset of data points shows that societal

understandings of privacy have changed significantly

from the all-or-nothing concept of information disclo-

sure that appears to undergird Smith v. Maryland,

442 U.S. 735 (1979), and its progeny. Today, technol-

ogy has made it possible—and society has deemed it

reasonable—for an individual to exert a more nuanced

control over the information he or she discloses: e.,

when, where, by whom, and for how long that infor-

mation may be accessed.

That said, the immediate impact of these changes in

societal expectations will be tempered somewhat by

the circularity inherent in the Katz analysis. See Kyllo

v. United States, 533 U.S. 27, 34 (2001). In other

words, the Katz test has a locking-in effect: When the

Court finds a practice does not trigger the warrant

requirement, law enforcement may regularly engage

in that process without securing a warrant—a practice

that inherently undercuts any societal expectation of

privacy in the information the government is securing.

Thus, given Smith's holding that the installation of a

pen register is not a search, and the resulting ease

with which such devices could be deployed, it remains

highly unreasonable for an individual to expect such

information to remain private.*

® The converse is also true: When the Court holds that a

particular practice implicates a reasonable expectation of

privacy, that perception of privacy is staunchly reinforced by

(1) the reduction in occurrences that necessarily results from

requiring a warrant; and (2)the knowledge that a neutral

10

es ¢

In sum, the Court of Appeals failed to apply the

methodology required by this Court’s cases, eschewing

a contemporary-society-based reasonable-expectation-

of-privacy analysis (which would have accounted for,

inter alia, modern technologies and the societal atti-

tudes they impelled) in favor of a rote application of a

rule that had its genesis in the heyday of the fax

machine and thermal printer. Applying the wrong

framework, the court below obtained the wrong answer.

As shown above, the correct conclusion is that obtain-

ing 127 days’ worth of an individual’s cell-site location

data is a search within the meaning of the Fourth

Amendment. The decision of the Court of Appcals for

the Sixth Circuit should therefore be reversed.'°

Il. THE COURT OF APPEALS FAILED TO

FACTOR THE NATURE OF THE

GOVERNMENT’S REQUEST INTO ITS

FOURTH AMENDMENT ANALYSIS.

The Court of Appeals failed to appreciate that the

nature and extent of the government’s actions—and

the use to which that information would be put—had

a bearing on its Fourth Amendment analysis. See

Jones, 565 U.S. at 430-431 (2012) (Alito, J., concurring

in the judgment) (contrasting “relatively short-term

[GPS] monitoring of a person’s movements on public

streets,” which likely would not qualify as a search,

magistrate and standard of probable cause have been interposed

between an individual and the executive arm of the state.

‘© Alternatively, the Sixth Circuit’s methodological error is,

itself, sufficient grounds for vacating that court’s decision and

remanding this case so that the Court of Appeals may undertake

the proper analysis of petitioner’s claims.

11

with “the use of longer term GPS monitoring,” which

“impinges on expectations of privacy”).

Here, the government sought 127 days’ worth of

petitioner’s cell-site location information—effectively

putting a retroactive tail on him for more than four

months— in order to generate circumstantial evidence

that he had, in fact, committed the crimes he was

accused of committing. The long-term nature of that

surveillance and purpose of gathering information for

use in investigating and prosecuting a crime counsel

strongly in favor of the conclusion that collection of

petitioner’s cell-site location information amounted to

a search that required a warrant in order to proceed."

The Sixth Circuit's counter-argument—that the

information at issue is not specific enough to trench on

privacy expectations—is both internally inconsistent

and foreclosed by precedent. It is self-contradictory

because, despite the supposed imprecision of the loca

tion information, it was proffered here—and has been

proffered in many other cases—as competent evidence

in support of a suspect’s prosecution and conviction.

Carpenter, 819 F.3d at 885; accord In re Application of

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

Commce’n Serv. to Disclose Records to the Gov't, 620

F.3d 304, 311-312 (3d Cir. 2010) (“[T]he Government

has asserted in other cases that a jury should rely on

the accuracy of the cell tower records to infer that an

individual, or at least her cell phone, was at home.”);

_

"A different case might be presented, for example, if the

government were to seek a narrower slice of information (e.g., to

confirm whether his phone was active or not) over a much more

circumscribed period of time (e.g., within a range of a few hours

on a particular date) and for a different purpose (e.g., to validate

or challenge an alibi defense).

12

United States v. Davis, 785 F.3d 498, 540-541 (11th

Cir. 2015) (en banc) (Martin, J., dissenting) (similar).

And the argument is foreclosed because this Court

squarely rejected a parallel contention in Kyllo. In

that case, the Court dismissed out of hand the notion

that the lack of specificity in the data being gathered—

a “crude visual image” from a thermal camera—

precluded a finding that the use of the heat-sensing

technology at issue qualified as a Fourth Amendment

“search.” Jd. at 36-37. So too here, where the

generalized nature of the location information at issuc

should not be held to insulate the government's

collection efforts from the Fourth Amendment’s

warrant requirement.

Congress affirmed the importance of these context-

ual factors in its choice of text in Section 2703.

As relevant here, the statute provides:

(c) Records Concerning Electronic Com-

munication Service or Remote Com-

puting Service.—

(1) A governmental entity may require a

provider of electronic communication

service or remote computing service to

disclose a record or other information

pertaining to a subscriber to or cus-

tomer of such service (not including

the contents of communications) only

when the governmental entity—

(A) obtains a warrant issued using

the procedures described in the

Federal Rules of Criminal Proce-

dure (or, in the case of a State

court, issued using State warrant

13

procedures) by a court of compc-

tent jurisdiction; [or]

(B) obtains a court order for such

disclosure under subsection (d) of

this section;....

Subsection (d), in turn, provides, in relevant part:

(d) Requirements for Court Order.—A

court order for disclosure under subsection

(b) or (c) may be issued by any court that

is a court of competent jurisdiction and

shall issue only if the governmental! entity

offers specific and articulable facts show-

ing that there are reasonable grounds to

believe that ... the records or other infor-

mation sought, arc relevant and material

to an ongoing criminal investigation. .. .

As this text makes plain, Congress mapped out two

alternative paths to securing a subscriber’s records

from an electronic communications service provider: a

warrant based on probable cause or a court order

based on “reasonable grounds to believe that ... the

records ... are relevant and material to an ongoing

criminal investigation.”

Put differently, unless Section 2703(c)(1)A)’s war-

rant requirement is entirely superfluous, it must be

the case that Congress contemplated that sometimes a

request for such information would require a warrant,

and sometimes it would not. Cf. Corley v. United

States, 556 U.S. 303, 314 (2009) (rejecting broad

reading of statutory exception to rule excluding certain

confessions because that construction would have

rendered a different—and narrower—exception provi-

sion “nonsensical and superfluous”).

14

The Sixth Circuit’s analysis overrides that congres-

sional choice by making an impermissible generalization

about the nature of the data that would never require

a warrant. Carpenter, 819 F.3d at 887 (“The busincss

records here fall on the unprotected side of this line.

Those records say nothing about the content of any

calls. Instead the records include routing information,

which the wireless providers gathered in the ordinary

course of business. Carriers necessarily track their

customers’ phones across different cell-site sectors

to connect and maintain their customers’ calls. And

carriers keep records of these data to find weak spots

in their network and to determine whether roaming

charges apply, among other purposes. Thus, the cell-

site data—like mailing addresses, phone numbers,

and IP addresses—are information that facilitate per-

sonal communications, rather than part of the content

of those communications themselves. The govern-

ment’s collection of business records containing these

data therefore is not a search.”). But, as explained

above, that context-bereft analysis is consonant with

neither the statutory text nor the Fourth Amendment

backdrop against which Congress legislated.

Accordingly, because the Court of Appeals failed to

heed the plain text and structure of Section 2703(c) in

admitting evidence against Timothy Carpenter that

was secured without a warrant, its judgment must be

reversed.

15

CONCLUSION

For the foregoing reasons, the judgment of the Court

of Appeals should be reversed.

Respectfully submitted,

JOHN W. WHITEHEAD D. ALICIA HICKOK

DOUGLAS R. MCKUSICK Counsel of Record

THE RUTHERFORD INSTITUTE MARK D. TATICCHI

P.O. Box 7482 DRINKER BIDDLE &

Charlottesville, VA 22906 REATH LLP

(434) 978-3888 One Logan Square

Philadelphia, PA 19103

(215) 988-2700

Alicia. Hickok@dbr.com

Counsel for Amicus Curiae

August 14, 2017