1 00:00:00,040 --> 00:00:02,040 Speaker 1: When you make a call with your mobile phone, your 2 00:00:02,040 --> 00:00:05,320 Speaker 1: wireless carrier learns a lot about you. There's a number 3 00:00:05,360 --> 00:00:07,520 Speaker 1: you called and how long you talked, of course, and 4 00:00:07,560 --> 00:00:10,400 Speaker 1: in addition, the wireless company knows which cell towers the 5 00:00:10,400 --> 00:00:12,879 Speaker 1: phone connects to, meaning it has a pretty good idea 6 00:00:12,920 --> 00:00:15,000 Speaker 1: of where you of where you were during the call. 7 00:00:15,800 --> 00:00:17,880 Speaker 1: Now the Supreme Court is going to consider just how 8 00:00:17,920 --> 00:00:20,960 Speaker 1: easy it should be for prosecutors to get access to 9 00:00:21,120 --> 00:00:24,560 Speaker 1: that locational information. The Justices this week said they will 10 00:00:24,640 --> 00:00:28,360 Speaker 1: use a bank robbery case to decide whether law enforcement 11 00:00:28,400 --> 00:00:32,320 Speaker 1: officials NTO warrant to get that information from your wireless company. 12 00:00:32,520 --> 00:00:34,800 Speaker 1: With us to talk about the case is Robert Minz. 13 00:00:34,840 --> 00:00:37,080 Speaker 1: He's a partner in mcarter and English and a former 14 00:00:37,120 --> 00:00:40,479 Speaker 1: federal prosecutor. And Elias Shapiro, he's a senior fellow in 15 00:00:40,520 --> 00:00:43,880 Speaker 1: Constitutional Studies at the Cato Institute. He filed a brief 16 00:00:44,240 --> 00:00:47,400 Speaker 1: urging the Supreme Court to take up the case. Bob, 17 00:00:47,800 --> 00:00:50,320 Speaker 1: Before we kind of delve into what the Supreme Court 18 00:00:50,320 --> 00:00:52,479 Speaker 1: could do and perhaps what it should do, can we 19 00:00:52,520 --> 00:00:54,840 Speaker 1: just get up to the speed on the facts of 20 00:00:54,880 --> 00:00:58,640 Speaker 1: the case. UH, tell us who Timothy Carpenter is and 21 00:00:58,680 --> 00:01:03,640 Speaker 1: why he's before the Supreme Court. Shure. Timothy Carpenter was 22 00:01:03,920 --> 00:01:07,600 Speaker 1: convicted um of being involved in a string of armed 23 00:01:07,680 --> 00:01:11,440 Speaker 1: robberies that occurred over a two year period. He was 24 00:01:11,480 --> 00:01:14,720 Speaker 1: involved with the group of men. He was allegedly, um 25 00:01:14,760 --> 00:01:17,559 Speaker 1: the ringleader of those men, and they were breaking into 26 00:01:17,600 --> 00:01:23,200 Speaker 1: ironically enough, cell phone stores aren't with guns and uh 27 00:01:23,440 --> 00:01:27,240 Speaker 1: stealing on stealing those cell phones. And the way the 28 00:01:27,280 --> 00:01:30,320 Speaker 1: case progressed is the government flipped one of the co 29 00:01:30,319 --> 00:01:36,160 Speaker 1: conspirators who provided information about the other co conspirators cell phones. 30 00:01:36,240 --> 00:01:41,479 Speaker 1: And from that information, the government obtained records on Mr 31 00:01:41,600 --> 00:01:46,800 Speaker 1: Carpenter's cell phone, historical cellphone records as they were described, 32 00:01:47,240 --> 00:01:51,240 Speaker 1: which the government then used to reveal the general location 33 00:01:51,720 --> 00:01:55,800 Speaker 1: of Mr Carpenter over the span of several months. And 34 00:01:55,800 --> 00:02:00,560 Speaker 1: and those records revealed that he was near the breeze 35 00:02:00,640 --> 00:02:03,640 Speaker 1: on at least four occasions. And the government used that information, 36 00:02:03,880 --> 00:02:08,280 Speaker 1: in addition to other information, to convict him a trial. Ill. Yeah, 37 00:02:08,480 --> 00:02:12,320 Speaker 1: what did the appellate court rule in this case, Well, 38 00:02:12,360 --> 00:02:16,400 Speaker 1: it applied what's called the third party doctrine, meaning that 39 00:02:16,480 --> 00:02:21,400 Speaker 1: the uh uh this information, the data was freely released 40 00:02:21,880 --> 00:02:27,200 Speaker 1: by the by the defendant to the cell phone provider UH, 41 00:02:27,280 --> 00:02:30,520 Speaker 1: and so he no longer had UH an expectation of 42 00:02:30,560 --> 00:02:33,520 Speaker 1: privacy in it in effect, and so the government could 43 00:02:34,440 --> 00:02:37,720 Speaker 1: more freely access and at least not not requiring a warrant. 44 00:02:38,720 --> 00:02:41,519 Speaker 1: And Bob specifically, what's the issue that the Supreme Court 45 00:02:41,639 --> 00:02:45,200 Speaker 1: is going to decide here? Well, it's it's a quite 46 00:02:45,240 --> 00:02:50,200 Speaker 1: important issue, UM because it really calls into question the 47 00:02:50,280 --> 00:02:55,280 Speaker 1: structure of modern surveillance law, which is currently built on 48 00:02:55,760 --> 00:03:00,040 Speaker 1: primarily on a distinction between the contents of communication and 49 00:03:00,240 --> 00:03:04,720 Speaker 1: such as wire taps, which require probable cause and require 50 00:03:05,280 --> 00:03:11,320 Speaker 1: um a court order, versus non content related information, which 51 00:03:11,360 --> 00:03:14,520 Speaker 1: is what the government obtained here, which generally does not 52 00:03:14,720 --> 00:03:19,360 Speaker 1: require a warrant and is not viewed by the courts 53 00:03:19,520 --> 00:03:24,040 Speaker 1: as a Fourth Amendment search ILIA. It doesn't appear as 54 00:03:24,080 --> 00:03:28,440 Speaker 1: if the appellate courts were in any kind of disagreement 55 00:03:28,520 --> 00:03:33,640 Speaker 1: or conflict. So why did the Supreme Court take this case? Well, 56 00:03:34,560 --> 00:03:40,080 Speaker 1: the Court is facing more and more UH challenges to 57 00:03:40,440 --> 00:03:45,360 Speaker 1: government action, law enforcement and otherwise that arise from UH, 58 00:03:45,960 --> 00:03:51,360 Speaker 1: digital communications and other new technologies, and the Court has 59 00:03:51,440 --> 00:03:54,640 Speaker 1: been reticent to to wait in too much or to 60 00:03:54,760 --> 00:03:58,960 Speaker 1: make to sweeping pronouncements that might UH not make sense 61 00:03:59,000 --> 00:04:00,680 Speaker 1: with with newer technolog as you would have you, but 62 00:04:00,720 --> 00:04:04,080 Speaker 1: it's come to a point where this practice is so widespread, 63 00:04:04,160 --> 00:04:09,920 Speaker 1: This acquiring the cell site location information has become so widespread, UH, 64 00:04:09,960 --> 00:04:12,720 Speaker 1: and the way the courts are deciding lower courts are 65 00:04:12,760 --> 00:04:17,480 Speaker 1: deciding UH, even if it's not necessarily a strict split. 66 00:04:17,520 --> 00:04:19,760 Speaker 1: There's an argument about how much there is, but there's 67 00:04:19,839 --> 00:04:22,919 Speaker 1: there's the doctrine is sort of getting away from uh, 68 00:04:22,960 --> 00:04:25,440 Speaker 1: from the judiciary, and I think that it's it's wise 69 00:04:25,480 --> 00:04:28,839 Speaker 1: for the Supreme Court to step in and exactly evaluate 70 00:04:28,960 --> 00:04:31,520 Speaker 1: what's going on here as it as it did a 71 00:04:31,520 --> 00:04:35,640 Speaker 1: few years ago when it ruled narrowly but unanimously that 72 00:04:35,680 --> 00:04:39,000 Speaker 1: the police can't simply rifle through someone's a cell phone 73 00:04:39,520 --> 00:04:42,039 Speaker 1: looking for for evidence of crime without a warrant. So 74 00:04:42,080 --> 00:04:44,320 Speaker 1: this is the next step after that, if you will. 75 00:04:44,360 --> 00:04:46,640 Speaker 1: That was the case of Riley versus California, and I 76 00:04:46,680 --> 00:04:51,240 Speaker 1: think Carpenter will go down as probably the the biggest 77 00:04:52,080 --> 00:04:56,560 Speaker 1: case of the of the digital era, updating Fourth Amendment doctrine, 78 00:04:56,560 --> 00:04:58,920 Speaker 1: probably in a way that it hasn't been in over 79 00:04:58,960 --> 00:05:01,480 Speaker 1: fifty years. Are talking about what could be one of 80 00:05:01,520 --> 00:05:03,839 Speaker 1: the biggest Supreme Court cases of its next term. It 81 00:05:03,880 --> 00:05:08,520 Speaker 1: has to do with digital privacy and what prosecutors need 82 00:05:08,600 --> 00:05:11,560 Speaker 1: to show in order to get information from mobile phone 83 00:05:11,600 --> 00:05:14,920 Speaker 1: companies that show the locations you're at when you make 84 00:05:15,320 --> 00:05:18,559 Speaker 1: phone calls and receive phone calls. Our guests are Robert 85 00:05:18,560 --> 00:05:21,719 Speaker 1: Mints of McCarter and English and Elias Shapiro of the 86 00:05:21,839 --> 00:05:26,800 Speaker 1: Cato Institute alia. Um. In this case, the government actually 87 00:05:26,839 --> 00:05:30,159 Speaker 1: did have to go get a court order under something 88 00:05:30,200 --> 00:05:33,919 Speaker 1: called the Stored Communications Act. Can you just explain what 89 00:05:34,200 --> 00:05:37,360 Speaker 1: that is and how that is different from what they 90 00:05:37,360 --> 00:05:41,480 Speaker 1: would have to do to get to get a warrant? Sure, 91 00:05:42,160 --> 00:05:47,200 Speaker 1: under the Stored Communications Act, which is a federal statute, um, 92 00:05:47,279 --> 00:05:53,240 Speaker 1: they don't need to show probable cause um regarding whatever 93 00:05:53,279 --> 00:05:57,200 Speaker 1: they want to determine. It's a lower standard of uh, 94 00:05:58,000 --> 00:06:00,640 Speaker 1: of relevance. They don't have the exact language in front 95 00:06:00,680 --> 00:06:02,920 Speaker 1: of me. But in any event, it's not the equivalent 96 00:06:02,960 --> 00:06:05,400 Speaker 1: of going to a judge and saying, uh, you know, 97 00:06:05,480 --> 00:06:08,880 Speaker 1: here's my evidence. I need a warrant. It's just uh, 98 00:06:08,920 --> 00:06:12,039 Speaker 1: some sort of suspicion or or need as part of 99 00:06:12,040 --> 00:06:15,560 Speaker 1: a a criminal investigation. It's a much much lower standard 100 00:06:16,120 --> 00:06:19,600 Speaker 1: um uh. And that's why it's it's it's used widely 101 00:06:19,960 --> 00:06:22,400 Speaker 1: even when there's not enough evidence to actually get a 102 00:06:22,440 --> 00:06:27,880 Speaker 1: warrant Bob, since they're asking for less information than they 103 00:06:27,920 --> 00:06:32,159 Speaker 1: would in a warrant let's say, of someone's office or 104 00:06:32,600 --> 00:06:38,880 Speaker 1: cell phone. Is this lower standard enough. Well, what the 105 00:06:38,960 --> 00:06:43,840 Speaker 1: lower standard really does is it focuses on the question 106 00:06:43,880 --> 00:06:48,880 Speaker 1: of reasonable expectation of privacy, and that draws a distinction between, 107 00:06:49,200 --> 00:06:51,880 Speaker 1: in some ways the type of information or the sensitivity 108 00:06:51,920 --> 00:06:56,599 Speaker 1: of information, versus how the government obtained it. Um Here 109 00:06:57,040 --> 00:07:00,479 Speaker 1: of these records, according to the government, were volunteeringly turned 110 00:07:00,520 --> 00:07:03,840 Speaker 1: over by the defendant when he decided to use a 111 00:07:03,920 --> 00:07:07,200 Speaker 1: cell phone and he knew that information about his location 112 00:07:08,560 --> 00:07:12,840 Speaker 1: Visa v. Cellphone towers would be available to the cell 113 00:07:12,840 --> 00:07:16,120 Speaker 1: phone operator. And the Sixth Circuit, which is a lower 114 00:07:16,160 --> 00:07:19,360 Speaker 1: court decision, which is which is now being appealed to 115 00:07:19,360 --> 00:07:22,720 Speaker 1: the Supreme Court, focused on that issue and and and 116 00:07:22,760 --> 00:07:26,480 Speaker 1: made the argument that the legitimate expectation of privacy really 117 00:07:26,520 --> 00:07:29,640 Speaker 1: turns on a large part what the government did to 118 00:07:29,720 --> 00:07:32,800 Speaker 1: get the information. In other words, was it voluntarily turned 119 00:07:32,840 --> 00:07:36,840 Speaker 1: over or was the information obtained by by some more 120 00:07:36,880 --> 00:07:40,800 Speaker 1: intrusive means, such as putting a GPS device on a car? 121 00:07:41,240 --> 00:07:43,720 Speaker 1: Rather than focusing so much on the sensitivity of the 122 00:07:43,720 --> 00:07:46,640 Speaker 1: information itself. Ill. Yeah, I want to step back and 123 00:07:46,640 --> 00:07:49,360 Speaker 1: ask a bigger question. So this case is about the 124 00:07:49,360 --> 00:07:53,720 Speaker 1: Fourth Amendment, which was written two d and five years ago. Um, 125 00:07:53,800 --> 00:07:57,080 Speaker 1: and we're dealing with you know, digital technology that has 126 00:07:57,520 --> 00:08:01,200 Speaker 1: been changing rapidly in the past few decades. Um. How 127 00:08:01,480 --> 00:08:05,640 Speaker 1: well has the Supreme Court done in terms of applying 128 00:08:05,880 --> 00:08:10,680 Speaker 1: that very old constitutional provision to all the new technologies, 129 00:08:11,120 --> 00:08:13,960 Speaker 1: uh and and the vast amount of information that's out 130 00:08:14,000 --> 00:08:18,840 Speaker 1: there today. Well, it's done better than than you might 131 00:08:19,080 --> 00:08:21,520 Speaker 1: uh expect or hope. I thought you were gonna ask 132 00:08:21,560 --> 00:08:23,960 Speaker 1: me how you know, how relevant is the Fourth Amendment? 133 00:08:23,960 --> 00:08:26,040 Speaker 1: Does it need to be updated in some way? But 134 00:08:26,080 --> 00:08:28,360 Speaker 1: those are really the same questions, because at the end 135 00:08:28,400 --> 00:08:32,120 Speaker 1: of the day, when the Fourth Amendment talks about people's uh, 136 00:08:32,400 --> 00:08:35,360 Speaker 1: the right of the people to be secure in their persons, houses, papers, 137 00:08:35,400 --> 00:08:38,959 Speaker 1: and effects against unreasonable searches and seizures, well, you can 138 00:08:39,080 --> 00:08:43,200 Speaker 1: understand that even digital effects are effects. That files that 139 00:08:43,240 --> 00:08:45,920 Speaker 1: we have stored in our computers are our papers, et cetera. 140 00:08:46,120 --> 00:08:49,320 Speaker 1: The vast of the pictures and videos and things that 141 00:08:49,360 --> 00:08:51,160 Speaker 1: we have on our cell phones that that you don't 142 00:08:51,160 --> 00:08:53,800 Speaker 1: need to update or amend the Fourth Amendment for that 143 00:08:53,880 --> 00:08:57,920 Speaker 1: to qualify. And similarly, UH, even though two years ago 144 00:08:57,960 --> 00:09:00,240 Speaker 1: the only kind of search that was possible was a 145 00:09:00,280 --> 00:09:03,680 Speaker 1: physical search, the policeman actually going into somebody's house or 146 00:09:04,000 --> 00:09:06,080 Speaker 1: or other property and and and looking at it. And 147 00:09:06,080 --> 00:09:08,640 Speaker 1: now there's all sort of sophisticated means, it doesn't mean 148 00:09:08,640 --> 00:09:10,360 Speaker 1: that we don't know what a search or a seizure 149 00:09:10,400 --> 00:09:13,719 Speaker 1: is anymore. For example, there was the Kylo case from 150 00:09:13,720 --> 00:09:17,040 Speaker 1: about what fifty and almost twenty years ago with the 151 00:09:17,040 --> 00:09:20,640 Speaker 1: thermal imaging where the law enforce mode would would fly 152 00:09:20,840 --> 00:09:23,200 Speaker 1: over with a thermal imager to get at whether there 153 00:09:23,280 --> 00:09:25,840 Speaker 1: was a certain type of heat signature in a house 154 00:09:25,840 --> 00:09:29,239 Speaker 1: that would determine that that was indicative of growing marijuana. 155 00:09:29,280 --> 00:09:31,840 Speaker 1: For example, in the Supreme Court determined that yes, that 156 00:09:32,000 --> 00:09:35,959 Speaker 1: was a search because applying the reasonable protection of of 157 00:09:35,960 --> 00:09:40,080 Speaker 1: of privacy standard, UH, nobody would expect this type of 158 00:09:40,120 --> 00:09:42,800 Speaker 1: device to be used to uh, to look at what 159 00:09:42,840 --> 00:09:45,760 Speaker 1: they've protected. And so there's gonna be a similar argument 160 00:09:45,880 --> 00:09:50,199 Speaker 1: here about what constitute what is the property that who 161 00:09:50,200 --> 00:09:52,360 Speaker 1: doesn't belong to this this this data? Do you have 162 00:09:52,400 --> 00:09:55,200 Speaker 1: an expectation, UH, that it's going to be searched or 163 00:09:55,320 --> 00:09:59,080 Speaker 1: is reasonable expectation of privacy itself? Kind of that might 164 00:09:59,120 --> 00:10:02,000 Speaker 1: be an outmoded gloss on the Fourth Amendment that, after all, 165 00:10:02,080 --> 00:10:05,200 Speaker 1: is judicially created a language. Um, So how should we 166 00:10:05,240 --> 00:10:09,360 Speaker 1: think about the protection of property from search and seizure 167 00:10:09,400 --> 00:10:11,680 Speaker 1: in the digital age? If you ever say, contract with 168 00:10:11,760 --> 00:10:15,520 Speaker 1: your provider, does that protect you? Further? If their privacy regulations? 169 00:10:15,559 --> 00:10:18,160 Speaker 1: How does that work? All right, Bob, I want to 170 00:10:18,200 --> 00:10:22,920 Speaker 1: get your input into how you think the court has 171 00:10:23,000 --> 00:10:26,920 Speaker 1: been has been acting in this area and whether you 172 00:10:27,040 --> 00:10:30,280 Speaker 1: think they are going to start to require a warrant 173 00:10:30,320 --> 00:10:33,760 Speaker 1: in these cases. Well, this is gonna be a really 174 00:10:33,800 --> 00:10:38,840 Speaker 1: tough decision because the prior cases um have been at 175 00:10:38,880 --> 00:10:42,199 Speaker 1: least in my view, less controversial. Um. The Jones decision 176 00:10:42,200 --> 00:10:46,080 Speaker 1: had to do with placing a GPS device on an automobile. Um. 177 00:10:46,160 --> 00:10:49,200 Speaker 1: The courts have been more sensitive to collecting real time 178 00:10:49,280 --> 00:10:53,880 Speaker 1: data than they have been to collecting historical data. Obviously, 179 00:10:53,920 --> 00:10:56,960 Speaker 1: anything having to do with content is much more protected 180 00:10:57,000 --> 00:11:00,440 Speaker 1: than than non content. But the problem him that the 181 00:11:00,440 --> 00:11:03,480 Speaker 1: courts ultimately have to grapple with is that so much 182 00:11:03,520 --> 00:11:08,839 Speaker 1: information is available of a of a non content form, which, 183 00:11:08,920 --> 00:11:12,440 Speaker 1: when put together over a long period of time, really 184 00:11:13,080 --> 00:11:16,920 Speaker 1: lays out a roadmap of someone's life, so that when 185 00:11:17,000 --> 00:11:20,560 Speaker 1: looking at an individual piece of of of data, for example, UM, 186 00:11:20,600 --> 00:11:22,760 Speaker 1: to find out that someone's dining at a particular restaurant 187 00:11:22,760 --> 00:11:25,640 Speaker 1: in a particular day may may not be of grave 188 00:11:25,920 --> 00:11:29,480 Speaker 1: privacy interest, But when you put together every every location 189 00:11:29,720 --> 00:11:32,000 Speaker 1: where somebody has been for the past months or two 190 00:11:32,040 --> 00:11:35,400 Speaker 1: months or years, Um and Bob, I'm afraid we're gonna 191 00:11:35,440 --> 00:11:36,680 Speaker 1: have to leave it there. I want to I want 192 00:11:36,679 --> 00:11:39,000 Speaker 1: to beg Bob Mint's partner Macarter and English and Elias 193 00:11:39,000 --> 00:11:41,560 Speaker 1: Shapiro of the Cato Institute, talking about the big new 194 00:11:41,840 --> 00:11:44,400 Speaker 1: digital privacy case the Supreme Court will hear in its 195 00:11:44,480 --> 00:11:46,680 Speaker 1: next term. This is Bloomberg