What the Founders Would Say About Cellphone Surveillance

On Nov. 29, the Supreme Court will hear oral argument in an important case called Carpenter v. United States. Although the question in the case may feel very modern — whether government agents can obtain the location data generated by cellphones without a warrant — history can tell us a lot about how the court should answer that question.

The Fourth Amendment of the U.S. Constitution guarantees that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” The amendment arose from the Founders’ concern that the newly constituted federal government would try to expand its powers and undermine rights that were guaranteed to Americans by the common law and their state constitutions. Based on experience, they knew that equipping government officers with unfettered discretion to search and seize would be a formidable means of oppressing “the people.”

Prior to the American Revolution, British subjects in the colonies and in England had lived with threats posed by “general warrants.” Unlike contemporary search warrants — which require probable cause, judicial approval, and limits on the place to be searched and the things to be seized — general warrants gave government agents license to search wherever they pleased, no matter their reasons, with impunity. And because the king’s ministers could issue general warrants on their own authority, these devices also opened the door to unchecked executive power.

This, of course, was a recipe for abuse.

Under the authority of general warrants, the king’s agents used the power to search and seize as a tool of oppression, targeting disfavored religious minorities and political opponents, such as those who published pamphlets criticizing the government. Some even used their powers to settle personal vendettas. In a series of mid-18th-century cases, courts in England put a stop to this madness, holding that general warrants violated basic principles of English law and were therefore unreasonable. These courts stressed that the very existence of general warrants made everyone vulnerable to the threat of unreasonable searches and seizures.

For example, one influential decision condemned general warrants as “totally subversive of the liberty of the subject” because they gave officers “a discretionary power … to search wherever their suspicions may chance to fall.” Another warned that “the secret cabinets and bureaus of every subject in this kingdom will be thrown open” if general warrants were not forbidden.

Across the Atlantic, James Otis, the Boston lawyer who popularized the slogan “taxation without representation is tyranny,” denounced general warrants, which British authorities were increasingly using to find smuggled goods on which taxes had not been paid. In a legendary speech, he derided them as “the worst instrument of arbitrary power,” which placed “the liberty of every man in the hands of every petty officer.” John Adams later called Otis’s speech “the first scene of the first act of opposition to the arbitrary claims of Great Britain. Then and there the child Independence was born.”

The Founders recognized that giving the state arbitrary search power harms “the people” in ways that go beyond the indignity of specific trespasses.

After splitting from Britain, many states adopted constitutions that guarded against oppressive searches and seizures, and the Fourth Amendment was later modeled on those protections. Read in this historical context, the Fourth Amendment is aimed at denying executive agents the unfettered discretion to conduct searches because of the pervasive insecurity that such discretion creates and the abuses of power it enables.

This history lesson is significant because it lights the way in the Carpenter case, where the Supreme Court will be considering the Fourth Amendment’s application to “cell site location information.” This is data generated and stored by our cellular service providers as our phones communicate with the providers’ networks of cell towers. It shows where we are most of the time, recording our locations and movements going back months and even years.

According to the federal government, nothing in the Constitution prevents its agents from exploiting cell site location information as they see fit and tracking the whereabouts of anyone or everyone. This is disconcerting. In a friend-of-the-court brief filed with other scholars, we argue that it is also contrary to the text and original meaning of the Fourth Amendment.

This may sound odd since there were no cellphones in 1791 when the Fourth Amendment was ratified. In that pre-digital world, searches usually involved physical intrusions, like seizing papers from a home. Today, law enforcement can track where you have been simply by getting location records from your cellular provider. But the word “search,” then as now, was not limited to trespassing on private property. It meant to “examine,” “look through,” or “try to find,” which clearly includes examining location records to find a person.

And the Founders recognized that giving the state arbitrary search power harms “the people” in ways that go beyond the indignity of specific trespasses. As the Supreme Court explained in its first major decision interpreting the Fourth Amendment, “It is not the breaking of his doors, and the rummaging of his drawers, that constitutes the essence of the offense,” but rather “the invasion of his indefeasible right of personal security” and the state’s unjustified encroachment into the “privacies of life.”

The same dangers of unfettered government power arise when officers can freely track people’s movements by looking through cell site location records. As the court noted recently in Riley v. California, cellphones are essential to modern life. Most of us carry one with us all the time, generating a continuous digital trail of our whereabouts that can reveal intimate relationships, medical conditions, religious practices, political activities, and more. Allowing the government unfettered access to that information would be tantamount to licensing the 24-hour surveillance of everyone. The possibility of such broad and indiscriminate tracking clearly jeopardizes the security of the people against unreasonable searches and seizures. Undoubtedly, therefore, government access to cell site location information must be regulated by the Fourth Amendment.

Significantly, cellphones are only the tip of the iceberg. A new generation of “smart” consumer products, along with the spread of ever-cheaper surveillance technologies, now enables increasingly broad and invasive searches. At stake in Carpenter is the government’s capacity to freely exploit these new technologies to monitor and control “the people” in ways that Justice Sonia Sotomayor has described as “inimical to democratic society.”

This looming dystopia is not inevitable. The Fourth Amendment guarantees protection against precisely such threats. As “the people,” that security is our birthright.

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Dr. Joseph Goebbels

The founders would say:
"Same shit, different day."

GeorgeWashington

What the fuck is a cell phone, does it have rights? Is it like a slave you have sex with that takes your notes?

Anonymous

Big Brother has been and is here. Fuck them.

Anonymous

Does anyone know what AWS S3 buckets are?

I bet you don’t but the government uses it to capture all your data. Be a “good” little boy and girl in ‘84

Anonymous

The only “birth right” a human has is to death.

Anonymous

It seems to me that the 4th Amendment refers to personal property as it refers to "persons, houses, papers, and effects". Effects, being "goods; movables; personal property.". Location cell data doesn't fit the definition of persons, houses, papers or effects and more importantly you don't own "it". "It's" owned by the cell operator, therefore it isn't considered "personal property". As for tracking everybody down, that's not a efficient use of resources, let alone a scalable idea considering the amount of devices tracked and amounts of information to be found.

OtherAnonymous

We already have precedent here; look at the wording of the whole thing:
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

Now, compare that to the second amendment:
"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

So, if the 4th amendment can ONLY be about "persons, houses, papers, and effects" then the second amendment can only apply to well regulated militias. The fact is, though, that even though they may state a different reason than what we are seeing here, it doesn't change that the part meant to be enforced is "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized"

Furthermore, I'm curious why you assume "effects" means goods, movables, and personal property: where is the documentation to back this up?

And, it should be noted that information about where you go IS personal property. Where we go, how we conduct ourselves is an act of expression, covered under free speech. That means that it is intellectual property and you own the copyright, making it your personal property. It is yours, and certainly not owned by a corporation that sticks a tracking device into a piece of tech that you are required to have to function in modern society.

Anonymous

The term "the people" must be read in light of the word that follows: "their." Otherwise, under Prof. Gray's interpretation, X (one of "the people") would have the right under the 4A to exclude evidence from his (X's) criminal trial that the government obtained from Y's home in violation of the 4A. Stated differently, Prof. Gray's interpretation would require the Court to overrule all of its opinions regarding "standing."

Anonymous

And yet where you "go" is out in the public domain, able to be seen by all!

Anonymous

"Intelligence" is valuable but extremely innaccurate because the target of surveillance is rarely confronted directly.

Essentially there are biased investigators usually with a guilty-until-proven-innocent attitude using innaccurate information - never substantiated with the target. This type of practice is a recipe for disaster.

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