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Here's the Scoop
Supreme Court Edition, Chatrie v. United States: Can police use cellphone location data to catch suspects?
00:37:26
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Not a creature was stirring, not even a mouth. And it all began with the help
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I got at Radio Shack.
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It's just before Christmas in 2010, and Radio Shack is airing commercials like this one. Advertising deals on cell phones.
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Super deals, super gifts. The Shack makes you a holiday hero.
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But for a group of robbers in Detroit, those deals aren't quite good enough. They pull up to a Radio Shack in a Pontiac Grand Prix, and prosecutors say they steal enough phones to fill a couple of laundry bags. A few days later, they hit a T mobile store. A few months later, they cross state lines into Ohio and rob a Radio Shack there, too. All told, the robbers hit six stores over the course of nearly two years. The police, they're stumped. Who was stealing these phones. Turns out it's a cell phone that helps authorities crack the case.
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Suspecting a Detroit man of robbing several smartphone stores, the FBI got the tower location records from his cell phone provider to prove he was near all the stores when they were robbed.
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That man was Timothy Carpenter. He ends up getting sentenced to 116 years in prison. But his story doesn't end there.
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Lawyers say the case should be thrown out because the FBI did not get a search warrant and should have because those records can reveal so much.
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Carpenter's lawyers challenged his conviction all the way to the Supreme Court, arguing that without a warrant, tracking his location via his cell phone was an unreasonable search by the government, a violation of his Fourth Amendment rights.
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Nearly all of us in America, 95%, have a cell phone. And the phone company captures a lot more data than just the numbers we dial.
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In fact, police can use that information to track where we've been.
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Carpenter's case ended up setting a new benchmark for privacy rights in the digital age. The Supreme Court ruling that getting all of that location data from his cell phone was near perfect surveillance. In their words, government basically the same as wearing an ankle monitor. And now, because of that case, police must get a warrant before obtaining cell phone location history from any phone company. Today, digital surveillance is back before the court, with Timothy Carpenter's case as the key precedent. I'm Laura Jarrett, senior legal correspondent at NBC News. Welcome to here's the Scoop, Supreme Court edition. I'm spending this month speaking to legal experts and attorneys whose legal wins make up the building blocks of the cases before the court this term. Attorneys like Nate Fried Wessler, who argued for Timothy Carpenter before the Supreme Court.
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Access to these aggregations of our historical location records present the government with a veritable time machine, an ability to press Rewind on someone's life and learn where we've been over weeks and months, far into the past.
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Wessler is the deputy director of the Privacy and Technology Project at the aclu and he joins me now. Nate, thanks so much for being here.
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Thanks. I'm really happy to be here to talk.
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Nate, you specialize in this intersection of technology and the law. How did issues surrounding privacy become so central to your work?
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Yeah, I don't have a technical background at all. I was a political science major in college. The set of issues that I was really focused on when I started at the aclu, you was a whole constellation of civil rights and civil liberties and human rights threats following the so called war on terror, indefinite attention and drone strikes and targeted killing and all the due process questions that those raise. But then I transitioned into this job working on digital technologies and digital privacy, and really I've learned the technical side as I've gone and have developed expertise on this really important area of Fourth Amendment law. The Fourth Amendment, of course, is the part of our Constitution that governs how police and the government conduct searches or seizures, how they learn information about us. And there are a bunch of questions that have emerged about how to update our understanding of this very old but foundational legal document, part of our Constitution, to account for technologies that the drafters of the Constitution obviously could never have envisioned more than 200 years ago.
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So let's dig in right there. You represent Timothy carpenter before the U.S. supreme Court. He'd been convicted in a string of robberies in Detroit. When did you first get involved in his case?
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Yeah, I first got involved when his case was in the Court of Appeals, the U.S. court of Appeals for the 6th Circuit. That covers the part of the country that includes Michigan. His case came out of the Detroit area, and we filed what's called an amicus brief, a friend of the court brief in that case. So we weren't representing him directly, but we talked to his attorney, we looked at the records, and we filed a brief explaining to that appeals court why we thought the Fourth Amendment should protect these kinds of voluminous and really revealing cell phone location history records. You know, in Mr. Carpenter's case, police got more than four months of really granular location data. The volume of data that was at issue in his case was pretty compelling. Right? More than four months, almost 13,000 individual location points. That averages out to about 101 location points per day. And it illustrated just a ton about his comings and goings, his patterns of life, where he spent the night where he went to church on Sundays and so much more. The impediment is that there are a pair of U.S. supreme Court cases from the 1970s that established what has come to be known as the so called third party doctrine. One of those cases was about the government going to a bank in an investigation to get a suspect's banking records, like canceled checks and account statements. And the other case was about the government going to a phone company to get a record of phone numbers that a suspect had dialed. And in both of those cases, majorities of the Supreme Court over very strong dissents, but majorities of the Supreme Court held that once a person has done business essentially with a private company and their information is in that company's files, that's no longer your private information. You've kind of given up your privacy interest. And so for fourth amendment purposes, if the government goes to that company instead of to you directly to ask for that information, it doesn't violate the fourth amendment, and they can do it without a search warrant. That was a real impediment, in our view, to protecting privacy in the digital age, because by the 2000 and tens, when we were starting to litigate this case, the volume and the diversity of private and personal information about us that's residing on the servers of companies that we really just have to engage with in the modern era was unprecedented. We're no longer dealing with just a handful of canceled checks from transactions, but we're dealing with a total almanac and map everywhere we've been in our location records. We're dealing with things like all of our emails held on the servers of companies like Google or Microsoft or Yahoo. We're dealing with medical records that we're storing in the cloud. We're dealing with photos that we're storing in the cloud. So it's just a fundamentally new world we're in. And we saw it as our challenge, and a really important one to try to explain to courts why those old rules can't just be mechanically extended to these very new technical realities.
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Carpenter's case is about cell phone data, and it requires at least, I think, a baseline understanding of how this technology works. And even though we walk around clutching our phones in our hands all day long, so many of us actually don't really know how this works. Can you explain how cell phones work, Nate?
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Yeah. So cell phones at the most basic level are two way radio transmitters. In order for a cell phone to make or receive a phone call, or send or receive a text message, or make a data connection, surf The Web check, a messaging app. It has to talk to a cell tower maintained by whatever company we have a contract with or some other company where there's a roaming agreement. What's relevant for Mr. Carpenter's case is, is that every time a phone makes one of those connections with the cell network, the cell phone company, the Service provider, like AT&T or Verizon or any of the others, is logging a record of which cell tower the phone was connected to and which antenna on that tower it was connected to. And most towers have several, at least, antennas that face in different directions to get good coverage. And so what the cell phone company has actually is a location record. Right. Knowing which tower and which antenna the phone is connected to tells you which tower the phone was the closest to almost always. And sometimes you can locate people to a small fraction of a city block, a part of a building, even a floor of a building, sometimes, sometimes a set of rooms in a building. And so you have the cell phone companies now sitting on this incredible record of where we've been, and they store it for a long time, between one and six or seven years, depending on which company you're talking about.
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What is the Fourth Amendment problem with that? What is the concern? What is the worst case scenario?
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Yeah, so the rule before the digital age was pretty easy under the Fourth Amendment, right, If the government wants to come and get my private files from my home or my filing cabinet or my backpack or my bag, they have to go to a judge first and get a warrant, which is important because it means the government can't just dig into the private documents and private parts of our lives on a mere hunch. Right. They have to show a real good reason that they think that person committed a crime and that evidence of that crime is going to be where they want to search.
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It can't be arbitrary.
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And that we've always regarded as. Yeah. As a really critical protection against arbitrary, inappropriate dragnet kind of searches where police just think, eh, let me see what I can dig up without good reason. And of course, once we're in that world, you have the government amassing all kinds of information about our private lives that they have no business knowing. What the difficulty was in framing the Carpenter challenge, the Carpenter case, is that we're now in a world where we don't, on our own computers or in our own filing cabinets, hold all of our private records. Right. So much of our personal information is actually stored on the servers of companies that we kind of have to interact with. And that is certainly true of the cell phone companies. You know, in the old days, police could have tried to reconstruct some of a person's past movements in an investigation. They could interview the person. They could talk to bystanders. Maybe there are some paper records, store receipts or something like that. But we're now in a world where there's this totally new kind of location information and it's sitting on the storage systems of a company. And unless there are legal protections, it's just open to the government basically at their whim with very few safeguards. And because it's so sensitive, we think that's really dangerous.
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We're going to take a quick break. And when we come back, how the Supreme Court makes sense of a constitutional Amendment for from 1791. In modern times, a cell phone can
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be pinged in your bedroom. It could be pinged at your doctor's office. It can ping you in the most intimate details of your life, presumably at some point, even in a dressing room as you're undressing.
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Stay with.
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Lots of places can expose you to identity theft.
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Oh, no.
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And we're back with here's the Scoop Supreme Court Edition. I'm Laura Jarrett speaking to Nate Fried Wessler. Nate, we're going to dive into your argument here in just a second. But first I want to set the scene a little bit because this was your very first Supreme Court argument ever. The pressure was on. Take me back to that morning. Before you walk up those white marble steps. What were you doing? What did you have for breakfast? What was your hype music?
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I mean, I was pretty nervous. You know, I was seven years out of law school. So pretty recent, pretty fresh to be doing a Supreme Court argument. But I also had really developed a lot of expertise on this particular question because I'd been litigating this question and related questions about how the Fourth Amendment applies in the digital age for a number of years here at the aclu. And I'd done a bunch of appellate arguments and was very comfortable with the issues. But the Supreme Court is just another game. The stakes can't be higher. So I was pretty nervous. I was, one might say, vibrating with some nervous energy. I just tried to stay as focused as I could, and then it was time and I stood up and was going.
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Your challenge, as I see it, is you're trying to trigger Fourth Amendment protections for modern technology that we all use, the likes of which was never, ever contemplated when the Fourth Amendment was ratified back in 1791. Right. The founders simply were not thinking about cell phones being compulsively carried everywhere, as the justices have described it. Given that challenge, given that reality, you appear to have this multi prong approach for how you're gonna win this case. And the step one is sort of the low hanging fruit. And you see this often, which is to say justices, the lower courts are a mess over this. They're all over the map. You need to step in and resolve this once and for all.
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As to these historical location records, the five courts of appeals to address this have generated 20 majority concurring and dissenting opinions, many of them virtually begging this court to provide guidance for how to protect these sensitive digital records that the court simply could not have imagined four decades ago.
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A lot of what you're talking about,
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and you make them believe this isn't just about people who commit crimes. This is about everyone. Everybody's rights are on the line here. And the pervasiveness of phones in our lives is clearly top of mind for the justices on this court. Take a listen to Justice Sotomayor.
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I don't, but I know that most young people have the phones in the bed with them.
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All right.
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I know people who take phones into public restrooms, they take them with them everywhere. It's an appendage now for some people.
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And it really comes down to figuring out where to draw the line here. And the crux, it seems, for the justices in your case, in Carpenter's case, is figuring out what is somebody's expectation of privacy in the thing that they're trying to shield from the government. Right. So everyone can almost always agree what happens in the bedroom, what happens in the bathroom. You have a expectation of privacy in that. But if you knowingly share that information with a third party, Say, a business like a cell phone company. Then you get into this idea that there is some reduced expectation of privacy, that you have given up something in some way.
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Yeah. So, you know, what we asked the court to look at, and what the court actually ended up looking at in the majority opinion was not just to have an on off switch where it says, if the government goes to a company to get the information, no problem, your rights aren't violated, and if they go to you to get it, then we need a warrant, but rather to look at what data, what information we're actually talking about how it was created and what it shows about you. And in fact, those older 1970s cases weren't just an on off switch. They actually instructed courts to look at the nature of the data at issue, how sensitive it is, and to look at how voluntarily it was shared or created or not voluntarily. And so we asked the court to apply those two dimensions, those two metrics to this data and to really understand that one, this data is of an unprecedented sensitivity. Right? It shows everything about where we go over time. And nobody expects that by just going about our daily lives with a necessary piece of equipment in our pocket that we think is for phone calls or for text messages or for going online, that we are somehow consenting to the government getting a full record of everywhere we've been. And never before in human history has that been possible. So it's a new capability that reveals an incredible volume of detailed information about who we are, who we spend time with, where we go. You know, do you go to the liquor store after work or the AA meeting or the psychiatrist's office or the lover's house? It's a lot of private stuff, and we're not meaningfully voluntarily sharing this. What we argued and the court agreed with us on is that in the 2000 teens and now the, you know, the 2000s, you really need a cell phone to participate in modern life. We need it for work, for social engagements, certainly for family, for emergencies. It's not optional for everything, right? You need a phone. And once you have that phone, unless you put it in airplane mode, at which point it's an expensive paperweight, it's connecting to cell towers. That's just how it works. And so you can't really opt out. There's no self protection here in the modern age. And so if the choice is it's a free for all, or police have to go through the same warrant procedure, they need to go into your house. We thought the answer was pretty easy,
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Nate. You end up winning the case. As you've mentioned, the decision is 5, 4. The majority opinion written by the Chief Justice, John Roberts, the only conservative justice on your side. And he writes this quote, when the government tracks the location of a cell phone, it achieves near perfect surveillance, as if it had attached an ankle monitor to the phone's user. Do you think that that's really the core of what clinched this for you, was that this tracking ability is truly unparalleled?
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Yeah, I think so. I think it's a recognition that the amount the government can learn at extraordinarily low cost is just unprecedented and tells so much about us. And I think it's important that, you know, the members of the Supreme Court are humans living in the real world, and they have cell phones and their kids have cell phones and their grandkids have cell phones. And so, you know, I think the members of the court who ruled on our side could also understand the personal stakes. And, you know, it's a kind of a quirk of Fourth Amendment law that most Fourth Amendment cases are appeals from criminal convictions. That's because there's one set of people in this country who have a constitutional right to learn how the government gathered information about them and then have a right to challenge that, which is people accused of crimes. And in many of those cases, the person may have actually done the crime, and some of them people are innocent. But it means that Fourth Amendment law involves facts where police actually often found incriminating information. But what's critical, and what I think members of the Supreme Court understand is that the rules that are set in those Fourth Amendment cases are the rules that protect all of us. And it's particularly important with digital age searches, because often we'll never learn about them if we're subject to them and never charged with a crime, because these often rely on technologies that we can't see or we don't control. So the stakes really are critical for all of us. And that's part of what we had to illustrate to the court, right, that almost every adult in the US Carries a cell phone. Most of those are smartphones. And every time that phone talks to a tower, a location record is made and it's saved and it's available.
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A
Once the court establishes that the acquisition of this type of cell phone location information is in fact a search under the Fourth Amendment, then that means the police need to get a warrant. That's the holding of your case in Carpenter. That's what made new law that had not been as clearly established as it was before you won this case. But from a practical standpoint, Nate, why is that warrant requirement so essential?
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B
Yeah, that warrant requirement is critical, and throughout the whole history of the United States, it's been critical. Part of the motivation for the fourth amendment. And the warrant requirement was a reaction to what were often called general warrants or writs of assistance used by British authorities in the colonial United States. So that was when an investigator, a soldier, a police officer, had a piece of paper that purported to give them authority to search anyone and anywhere for evidence of some crime. And what that resulted in was authorities busting down doors across a neighborhood looking for, say, printing presses of somebody who was purportedly printing seditious material opposed to the king barging into bedrooms and dining rooms and basements and sitting rooms just because they could. That is an incredible abuse and runs up against all of our concepts of sanctity, of privacy of our personal spaces, our personal information. That's really what the fourth amendment is there to protect. It's there to make sure that if the government is going to go get our private information from our private spaces, it has to pause, go to a judge, and demonstrate a very good reason to do that based on real evidence that that person has committed a crime. Without that, there's just no security against, effectively, a police state, Something that we have never wanted to live with and have set up real robust structures to avoid in this country.
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A
Nate. The pushback to that, of course, is that these techniques help people solve crimes. They help police solve crimes that would not be as easily done without it. So kidnappings, murders, rapists would be just roaming the streets. But for police being able to use these techniques, so. And so it's far from a police state, but on balance, it means more criminals get caught. What's your response to that?
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B
You know, there are a number of things that we as a society have decided police can't do just at their whim, just because they want to, even though it might result in detecting or solving a few more crimes. There's a reason for our fourth amendment, and that's really to put friction into the process, to slow the process down and make police demonstrate a good reason before delving into our private lives. You know, if police had the right to bust down any door in a neighborhood because they think a suspect is hiding inside some house, but they don't know which one, they would probably catch more suspects, but at a tremendous cost to our security and our way of life.
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A
Carpenter is widely viewed as a landmark decision on the fourth amendment in the digital age. But Justice Alito raised an important question.
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Could I just ask you this question? Is any of this going to do any good for Mr. Carpenter?
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Did it, Nate?
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B
So Timothy Carpenter won what is probably the most important Fourth Amendment case of a generation. The Supreme Court answered the legal Fourth Amendment question, said his rights were violated, police should have gotten a warrant, and they didn't. And then the Supreme Court sent the case back down for the lower courts to decide what that means for the evidence that was collected against him. And in a devastating turn, as a result of a doctrine called the good faith exception to the exclusionary rule, the lower courts said, well, we now know that Mr. Carpenter's rights were violated, but we're not going to throw out the cell phone location evidence because the Supreme Court has created this doctrine that says if police at the time they were doing a search were relying on a source of authority, legal authority, that was still valid at the time, then even if we learn later that they violated the constitution like in Mr. Carpenter's case, we're not going to throw out that evidence. And As a result, Mr. Carpenter, who was serving 116 year sentence as a result of some draconian federal mandatory minimum rules, got no direct relief from this landmark ruling in his case.
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So he remains behind bars.
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He remains behind bars as a result of some independent changes in federal sentencing law and Congress revisiting those mandatory minimums. He actually is now up for resentencing, hopefully to a significantly lower sentence that I deeply hope means that he's not sentenced to die in prison.
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When we come back, it's a story you might have heard before. A guy commits a robbery, gets caught, police use his cell phone location data, and his case goes to the Supreme Court. I mean, I need to check my location services settings. Plainly not that I'm going to commit crimes, but. No, that is not justice. Barrett cracking jokes in Timothy Carpenter's case. That's from arguments and this term. We're talking about a new robber, a new case, and a new court answering a new question with Carpenter's old case as the precedent. That's after the break. Hey, weirdos. I'm Alaina. And I'm Ash and we are the hosts of Morbid Podcast. Each week, we dive into the dark and fast, fascinating world of true crime, spooky history, and the unexplained. From infamous killers and unsolved mysteries to haunted places and strange legends, we cover it all with research, empathy, humor, and a few creative expletives. It's smart, it's spooky. And it's just the right amount of weird. Two new episodes drop every week and there's even a bonus once a month. Find us wherever you listen to podcasts. Yay. Whoa.
- [27:51]
C
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- [29:24]
A
And we're back with here's the scoop, Supreme Court Edition. I'm Laura Jarrett speaking to Nate Fried Wessler. Nate, your case is now the precedent for a big case still left to be decided this term. Chatri v. United States. It's referred to as the Geo Fencing case among those who are following it. And you actually filed a friend of the court brief. It's known as an amicus brief in this case on behalf of the aclu. But for the non tech savvy out there, what exactly is Geo Fencing?
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B
Yeah, so this case is about a different kind of cell phone location data directed at a different company. So the Chatri case is about data that Google used to hold. They've actually changed their system now so they no longer have access to it, but very granular location information that Google used to hold. So if somebody had a Google app or a Google system running on their phone and had location services enabled. Right. In other words, the GPS chip and the location tracking that you can often do for your mapping functions, everything else on our phones. Then Google was storing on its servers in a huge database that it called the sensor Vault, a really large volume of very precise location details about where you went. And Google partly used this for targeted advertising, to be able to route ads to people based on your location, but also offered it as a service substantially to the users themselves. You can go into your Google location history in your settings in your own account and see frequently visited locations. You can, you know, trying to remember the name of that restaurant you went to a month ago. You can go pull up your location history and see where it was. You can forward location history to your friend if you want, do all kinds of things with it. But it turns out that Google had the ability not just to go in there and search for one particular user's location history, but they could actually structure a search to tell them all the Google devices that were in a particular geographic area during a particular time frame. And when the police learned about this, it became a quite frequent technique for police to send requests to Google saying there was a crime at this place at this time. We want to know all the Google users who were within some radius of that place during some time frame, because we want to see if one of them was the suspect.
- [31:56]
A
And would you get like a list of numbers back? Would police literally just get pages and pages of pings of numbers?
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B
Google recognized that there were some serious privacy concerns here with turning over a list of a whole bunch of Google users, 99.9%, at least, of whom are by definition innocent, have nothing to do with the crime. Maybe there's one suspect in there, or maybe not. So Google required some steps in there. They required police to get a warrant, and they required that warrant to enable Google, at the first stage of turning over data, to turn it over anonymized, meaning it had a number associated with it, but not your phone number, kind of a randomized number. Often police would ask for sometime before to some time after the robbery. In many cases, it was 30 minutes before to 30 minutes after. So an hour location information. So Google initially sends a list of all the devices that were anywhere inside the circle or the square around that crime scene during that hour. And then the idea was police then look at that and then see if they can narrow it down to a set of people they're more interested in. And then ask Google to turn over more location information about them. Which point Google would turn over their actual movements over a longer period. And then police look at that, and they decide who they want to actually know the identity of. Right to take away that random number and put a name and an account identifier and an email address and everything else. And that could be for multiple people.
- [33:24]
A
In this case, prosecutors say Akeleg Chatri walked into a Virginia credit union in 2019, and they say he held the place up at gunpoint demanding $200,000. He gets away. Police have no leads. But unlike in your case, Nate, in Chatri's case, they do get a warrant and they ask Google for all location data for all of the cell phones in the area for the 30 minutes before and after the robbery. Basically a dragnet, if you will, of everyone's cell phone location data in the area, whether they were under suspicion or not. As you said, it's always over inclusive. What problem does that raise under the fourth Amendment? If they got a warrant?
- [34:02]
B
Yeah. So, you know, not every piece of paper that says warrant at the top is a valid warrant under the fourth Amendment. So the fourth amendment allows a mechanism for police to get warrants, but part of the structure of what those warrants have to look like is designed to avoid them for being overbroad. And there are kind of two kinds of over breath you can imagine. One is that police are only searching one suspect's stuff, but are seeking permission to seek too much of it. Right to search too much of it. So that might be, you know, police get a warrant to search my apartment for a stolen washing machine, but they end up, you know, looking through my bedside table drawers, in my medicine cabinet, looking for anything fishy. You're not supposed to do that. The search should be, and the warrant should be designed to limit the search to only the things that the government has a good reason to look at. But the other way a warrant can be overbroad is by giving police the authority to search information, private information, or spaces of innocent people who have nothing to do with the crime. And that's the problem with these geofence warrants, that in an attempt to identify one suspect, police are getting access to the location information of a whole bunch of people who, to a point of certainty, had nothing to do with that crime.
- [35:14]
A
And is the concern that they're going to use that data later on for some nefarious purpose or that they're going to get the wrong guy in the moment?
- [35:23]
B
It's both concerns. And in fact, we know about cases where police used geofence warrants, got location information about a bunch of people, and then zeroed in on an innocent person and arrested them. There's a case that was reported a couple years ago of somebody who was a regular bike rider who rode laps around his neighborhood on a bunch of days on a particular route. Turns out that route took him past a house where police had been investigating a crime. And police thought that this. This pattern of movement they saw in the geofence history of somebody repeatedly passing by that house looked like the activity of someone casing the house for a crime. In fact, it was an innocent person out for some exercise. So that's a risk. But the risk that the fourth amendment is also concerned about is the risk that police are just going to amass a bunch of information about innocent people and sit on it until they can find something that looks fishy, something that they can leverage to try to go after somebody for what might be innocent reasons or reasons that police have no business going after them. You know, one of the things about the geofence in Mr. Chatry's case is that the circle that police drew around the bank included part of a church, the parking lot, and the church itself. And so you have police ending up learning that a whole bunch of innocent people were at a house of worship, or we're at home, or we're in other closed, protected spaces with no good reason to learn that.
- [36:50]
A
Carpenter, the case that you won comes up frequently in the oral arguments of this case. Here's justice Barrett. I mean, he was. This was a few hours, and it was a public location, and nobody has a reasonable expectation of privacy in their public, observable movements. So does that make this different from Carpenter? Nate, is there anything that you think makes Chatry's case harder than yours was in Carpenter?
- [37:17]
B
Well, you know, there are two questions in the Chatry case. One is, is this a fourth amendment search at all? Meaning does the fourth amendment even apply? What the government says is, well, whatever we think of Carpenter, that rule was really about longer periods of location information. And this is about a relatively shorter period, right? A couple hours for some of the people who were swept up. And that just tells less about your life. You know, it may be true that it tells less about some people's lives, but there's a lot you can learn from a couple hours of somebody's movements. And certainly when the location information is precise enough to place you inside a home or a doctor's office or a house of worship, it tells a lot. So we'll see how the court addresses that question. Then on the second question, is this warrant too broad or too narrow? The court has a couple choices. We have advocated in our amicus brief to the court that this warrant is just per se overbroad because it sweeps up innocent people and because the search is actually through all of our hundreds of millions of people's records in that Google database. It just is not the kind of narrow warrant that we should allow. But even if the court disagrees with that, there are still a bunch of problems with this warrant that it has to parse through, including that multi step process where police don't go back to a judge and they just decide from themselves who they want to narrow in on and whose names they want to get. That's the kind of discretion that we normally don't give to police. We normally require them to go back to a judge if they want to dive further into more people's private information.
- [38:52]
A
Nate, how do you think this case ultimately comes out?
- [38:55]
B
It's hard to predict. And I am always very reluctant to guess how the Supreme Court is going to rule. But I do think that a lot of members of the court, I think a majority understand that there are really weighty Fourth Amendment questions here and that if they play fast and loose, it could actually have devastating effects beyond just these kind of location records. And so I think the court is going to be motivated to rule very carefully, very narrowly and to protect privacy because we're building on a precedent that sets the law of the land around how sensitive and private and how deserving of Fourth Amendment protection cell phone location records already are.
- [39:39]
A
Nate Fried, Wetzler, thank you for your time.
- [39:42]
B
Thank you so much.
- [39:47]
A
Next up in our series, the Supreme Court takes on the limits of presidential power and who President Trump is legally allowed to fire.
- [39:56]
B
The people you want to remove the most. There are all kinds of political constraints about why you shouldn't remove them. So removal is like a nuclear bomb.
- [40:05]
A
That's next time on here's the scoop, Supreme Court Edition. Our show was produced by Abigail Brooks and Amanda Llewellyn, Erica Huang engineered with support from Jessica Fenton. Our video editor is Jacob Condon. Kateri Yocum is executive producer of here's the Scoop. And Shalini Sharma is the senior vice president of content development at NBC News. I'm Laura Jarrett. See you next time.
- [40:39]
C
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