The Supreme Court -- in a narrow decision (both in scope and votes) -- has restored a little more of the Fourth Amendment. The long-awaited decision [PDF] in the Carpenter case has been released and the Supreme Court finds, in a 5-4 decision, that cell site location info (CSLI) is technically a third-party record but worthy of the Fourth Amendment's protection.The defendant challenged the government's warrantless acquisition of 127 days of CSLI, arguing that the constant location records generated (without proactive assistance from phone users) by cell providers raised enough of a privacy issue the Fourth Amendment was implicated. Somewhat surprisingly -- given the long history of expansive readings of the Third Party Doctrine -- the Supreme Court agrees.
[W]hile the third-party doctrine applies to telephone numbers and bank records, it is not clear whether its logic extends to the qualitatively different category of cell-site records. After all, when Smith was decided in 1979, few could have imagined a society in which a phone goes wherever its owner goes, conveying to the wireless carrier not just dialed digits, but a detailed and comprehensive record of the person’s movements.We decline to extend Smith and Miller to cover these novel circumstances. Given the unique nature of cell phone location records, the fact that the information is held by a third party does not by itself overcome the user’s claim to Fourth Amendment protection. Whether the Government employs its own surveillance technology as in Jones or leverages the technology of a wireless carrier, we hold that an individual maintains a legitimate expectation of privacy in the record of his physical movements as captured through CSLI. The location information obtained from Carpenter’s wireless carriers was the product of a search.
The court notes simply venturing out into the public does not erase all privacy expectations. The pervasive tracking engaged in by phone companies for business reasons should not undo a person's reasonable expectation of privacy. While the government tried to compare it to tracking vehicles with GPS devices, the court notes that cars cannot go everywhere people go. Long-term tracking -- made possible by provider recordkeeping -- provides the government with detailed depictions of cellphone users' lives. And all of this was -- up until this decision -- only a subpoena away.
[H]istorical cell-site records present even greater privacy concerns than the GPS monitoring of a vehicle we considered in Jones. Unlike the bugged container in Knotts or the car in Jones, a cell phone—almost a “feature of human anatomy,” Riley, 573 U. S., at ___ (slip op., at 9)—tracks nearly exactly the movements of its owner. While individuals regularly leave their vehicles, they compulsively carry cell phones with them all the time. A cell phone faithfully follows its owner beyond public thoroughfares and into private residences, doctor’s offices, political headquarters, and other potentially revealing locales.[...]Accordingly, 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.
The ubiquity of cellphones has changed the Third Party Doctrine dynamic. The court isn't willing to give the government warrant-free access to the personal lives of millions of Americans.
Critically, because location information is continually logged for all of the 400 million devices in the United States—not just those belonging to persons who might happen to come under investigation— this newfound tracking capacity runs against everyone. Unlike with the GPS device in Jones, police need not even know in advance whether they want to follow a particular individual, or when.
That's the substance of the decision, but the whole thing is worth reading in full. Even the dissents are worth a read, if only to see how many justices would prefer the government treat long-term tracking as no different than bank records people voluntarily create with every transaction. The court will extend the Third Party Doctrine to cover historical CSLI. However, it does not extend that coverage to cover tower dumps, real-time CSLI (ping orders/Stingray use) or any other records otherwise covered by the Third Party doctrine. But this is still a significant Fourth Amendment win -- and law enforcement agencies using CSLI subpoenas to cover Stingray use will now need to craft warrant requests specifying what they're doing, which will make just a little bit tougher to engage in parallel construction.More than half the page total is given over to the dissent. Justices Kennedy and Alito have written separate dissents that say pretty much the same thing:
1. The records were obtained from a third party so no warrant should ever be needed.2. This will law enforcement's work more difficult.
Even if the latter is true, Constitutional protections protect the citizens from their government. If they're an obstacle, they're meant to be. The court isn't there to ensure easy government access. It's there to act as a check against any government overreach it observes.Justice Thomas' dissent is perhaps the most infuriating read. Much like his dissent in other law enforcement-related cases, Thomas sides with the government while claiming he's siding with the Constitution. His main argument here is that the Fourth Amendment says nothing about privacy or reasonable expectations, therefore the court's decision is wrong. It guards people and papers, not stuff obtained from third parties, no matter how invasive these records can potentially be.Justice Gorsuch's dissent, however, is an entertaining read. It's really not even a dissent. He agrees with the majority's decision but doesn't think it goes far enough. If Gorsuch had his way, he would also return to a more originalist view of the Fourth Amendment -- the property rights theory he pitched during oral arguments. But unlike Thomas, his would eliminate the court-erected Third Party Doctrine and grant privacy to records created by customers/users and held by third parties. These decisions (Smith, Miller, Katz) would instead be replaced with a property-based treatment of records, giving customers/users more ownership rights to third-party records they create, making them part of the "houses and papers" Fourth Amendment interpretation even if the the "papers" are held by others.
I cannot fault the Sixth Circuit for holding that Smith and Miller extinguish any Katz-based Fourth Amendment interest in third party cell-site data. That is the plain effect of their categorical holdings. Nor can I fault the Court today for its implicit but unmistakable conclusion that the rationale of Smith and Miller is wrong; indeed, I agree with that. The Sixth Circuit was powerless to say so, but this Court can and should. At the same time, I do not agree with the Court’s decision today to keep Smith and Miller on life support and supplement them with a new and multilayered inquiry that seems to be only Katz-squared. Returning there, I worry, promises more trouble than help. Instead, I would look to a more traditional Fourth Amendment approach. Even if Katz may still supply one way to prove a Fourth Amendment interest, it has never been the only way. Neglecting more traditional approaches may mean failing to vindicate the full protections of the Fourth Amendment.
This is a big ruling and it will definitely affect how law enforcement approaches investigations. It will not be well-received by those used to tracking people via subpoena (rather than tail cars and surveillance teams). But it likely won't do much for Carpenter, who will almost certainly find good faith awarded to law enforcement's acquisition of his CSLI records. It will help going forward, but Carpenter will not be a beneficiary.
Buckle up, because this seemingly mildly interesting story has a ton of intersections on topics we typically talk about here at Techdirt. As a preface, you should recall that we firmly believe that content is advertising and advertising is content. By this we mean that every bit of content a producer makes serves to advertise that producer's wider content library and that advertisements, in order to be engaging, must be useful and/or entertaining every bit as much as more traditional content typically is. We've also talked a great deal about how content producers in the digital spaces must connect with their fanbases, treat them well, and provide them what they want, or risk backlash. Add to that, finally, that we think restrictive protectionism in the name of wider profits often achieves the opposite of that goal.Which brings us to Microsoft and Nintendo somewhat suprisingly teaming up to push out a bunch of ads centered on the ability for users of either to crossplay games across both systems.For those of you who cannot see the video embed, it's an ad put out by both Nintendo and Microsoft pointing out that gamers on both systems can crossplay with one another on some games, including the example shown in Minecraft. Frankly, it's quite jarring to see these combo-ads (there are more) put out by two rivals in the console space. If you weren't well-tuned to the video game industry, you'd probably be left wondering what the hell was going on here.The answer is that these ads are rather entertaining trolling attacks targeting Sony's Playstation 4, which has been the subject of some recent backlash coming out of E3 over the platform's lockdown on its system's games. While there is pretty much no such thing as a Playstation user that does not want crossplay enabled, and there are many who want it very much, Sony has gone the protectionist route. This is an attempt to convince friends of friends to buy Playstations so that they can play together, I suppose, but it's stupid and awful.
Some of the world's biggest games, from Fortnite to Minecraft to Rocket League, all support some variety of crossplay, allowing people with PCs, Xbox Ones, mobiles and Nintendo consoles to play on the same servers. Yet Sony continues to refuse to allow PlayStation consoles to get in on the fun when it comes to playing with Microsoft or Nintendo consoles.In the wake of E3 and the disappointment of Fortnite's account locking, then, two of the companies that do allow crossplay have teamed up to take a swing at the PlayStation 4 with this commercial for Minecraft, a game that's also available on PS4.
A couple of reactions. First, Sony made this shit-sandwich for itself by not giving its customers what they want for no other reason than protectionism, so it's not without fun to see them have to eat it up. Second, the combo-ads put out by Microsoft and Nintendo are both useful and, if you enjoy watching huge companies troll one another, fairly entertaining. And the companies have kept this up as a coordinated effort, rather than just limiting it to a one-off video ad.
And the Xbox Twitter account responded, of course, happily saying they're ready to build something together. While this might have flown right past many gamers, enough will realize that both companies are going out of their way to rub Sony's nose in crap to make this all a bit fun. Whether Sony will respond to the ribbing by finally unlocking its garden remains to be seen.In the meantime, though, this is a great example of advertising as content.
The cable & broadcast industry has gone to some pretty absurd lengths to avoid having to adapt to the cord cutting era. As ad-skipping DVRs started to become popular, the industry's response wasn't to embrace natural evolution, it was to file a bunch of lawsuits and creatively harass companies that were trying to give consumers what they wanted. Similarly, as cord cutting has grown thanks to sky-high prices and ad break fatigue, the industry's overall response was to first raise prices like it was going out of fashion, then try to speed up or edit down programs in the hopes of shoving more ads into each viewing hour.None of these "solutions," you'll be shocked to learn, actually slowed down the sector's evolution or the exodus of cable TV consumers to more flexible, less costly streaming alternatives. Alternatives that are, you'll note, actually listening to users and giving them what they're asking for (usually).More recently, we've seen broadcast and cable executives begrudgingly admit that they can't just keep doubling down on the same dumb ideas and expect a better outcome. As a result, we've seen some broadcasters experiment with lower advertising loads during prime time. And we're also seeing to see the industry get a little more creative as to what modern advertising actually means, even if many of these offerings aren't likely to solve the problem either.For example, NBC has pondered bringing back the bygone era of product placement, something that can easily go wrong if handled poorly. Similarly, Fox outlets like Fox Broadcasting, FX, at the National Geographic channel announced this week that they'll soon start experimenting with replacing ads with short "inspirational videos" funded by the pharmaceutical and insurance sectors:
"Starting this fall, Fox outlets like Fox Broadcasting, FX, Nat Geo and their digital counterparts will begin running inspirational videos that tell stories about people who have overcome adversity. These tales won't take part over the course of 22 episodes, but will instead show up during advertising time, and Fox hopes to get marketers to sponsor them. Pharmaceutical companies, sports advertisers, insurance marketers and wellness firms are viewed as potential candidates that might consider attaching their names to vignettes of various lengths about people triumphing over cancer, the loss of a limb, or even blindness."
Executives at Fox are calling these "inspirational vignettes" or "unbreakables," in that they're supposed to keep the viewer's attention fixed to the screen:
"Fox is expected to unveil the idea for the inspirational vignettes, known as Unbreakables, Monday at the Cannes Lions advertising festival in France. As part of our relentless pursuit of providing the best viewing experience and the highest performance for marketers, we are turning ad time into brand storytelling time, says Michael Shields, senior vice president of sales strategy for Fox Networks Group, in a statement."
Short stories funded by major corporations seeded between programming sound a lot like... advertisements. And while you have to credit the industry for actually trying something new, this will do nothing to thwart cord cutting if the content in question isn't actually compelling. We've talked in the past about how good content is advertising and how good advertisements should be good content -- but do you really think that what comes out of this will be good content?A better option for the cable and broadcast sector is to finally acknowledge that the cash-cow cable TV days of yesteryear are gone, they're not coming back, and that cable operators and broadcasters are going to have to actually try and compete now. That's going to require competing on price, service flexibility and customer service (gasp) instead of just doubling down on bad behavior. Many cable and broadcaster execs have grown so pampered from years of cozy deals and muted, "wink wink" style non-price competition that they're under the false impression that they have any real say in the matter.But that's how competition works. You don't much have a choice in the matter, and you can either adapt your business model to the new paradigm, or you can slowly but surely become an outdated relic surpassed by more nimble, flexible companies that actually provide what the customers want. Better ads are certainly part of that equation, but they're only a small portion of what's wrong with the traditional cable TV model.
The First Amendment covers a whole lot of area. Since it covers "expression," it doesn't necessarily have to be anything commonly thought of as "speech." It doesn't have to be printed. It doesn't have to be said. Lighting a flag on fire requires no statement of intent. The act itself is expressive enough. Passively gathering information (like recordings or public records) is protected by the First Amendment. Taking photos is a protected act, even if the photos are never used to express anything more than a memory of an event or place.It has been argued nudity or partially-exposed bodies are expressions deserving of protection by the First Amendment. Exotic dancers and "bikini barristas" have engaged in multiple free speech lawsuits targeting allegedly unconstitutional restrictions on their expressive conduct.A plaintiff currently suing a sheriff and the head of the California Highway Patrol is arguing that honking a car horn is protected speech and that the citation she received after engaging in this expression is unconstitutional. (via Courthouse News)Susan Porter was driving by a protest held outside of Rep. Darrell Issa's office. These frequent demonstrations gathered both protesters and counter-protesters, all of who made plenty of noise. Passing traffic would express their support/displeasure for Issa by honking their horns. (Which would make not honking your horn similarly protected expression, although it's unlikely anyone would be cited for not honking their horn while driving by a protest.)The demonstation briefly attended by Porter drew the attention of local law enforcement, who showed up to hand out citations to protesters. Porter was parked in a nearby parking lot. When the cops showed up, Porter decided to clear out. As she drove away past the protesters and newly-arrived law enforcement officers, she sent off one last car horn blast of support. Cue unneeded officer involvement. From the lawsuit [PDF]:
After Ms. Porter sounded her horn in support of the protest, Sheriff's Deputy K. Klein ("Deputy Klein"), ID. Number 7275, directed Ms. Porter to pull over.Deputy Klein told Ms. Porter she was pulled over for sounding her vehicle horn, and issued her a citation for alleged violation of Vehicle Code 27001, which states that "[t]he driver of a motor vehicle when reasonably necessary to insure safe operation shall give audible warning with his horn," but "[t]he horn shall not otherwise be used, except as a theft alarm system" (emphasis added). Cal. Veh. Code 27001.Section 27001 does not require that the use of a horn meet any specified noise level, disturb the peace, distract drivers or pedestrians, or endanger safety.[...]Ms. Porter's citation… states that the citation was for violation of "27001(A) cvc [sic] -- unreasonable use of horn" and contains no allegations as to noise level, disturbing the peace, distracting drivers or pedestrians, or endangering safety.
It looks like Deputy Klein didn't like being honked at (though he wasn't) by some protester slipping away from the scene of the crime in her vehicle and tagged her with a "don't fuck [with] the police" ticket. I'm sure he never expected his department would be named in a civil rights lawsuit, but that's the sort of thing that happens when the law is used in ways it shouldn't be. If these law enforcement officers were that concerned about horn noise, all they had to do was camp out outside Issa's office and hand out horn tickets all day long. But law enforcement is never about consistent enforcement. It's highly selective and sometimes the law that ends up being enforced isn't the one officers had in mind when they initiated the stop. (But that's a completely different amendment.)In this case, her honked horn wasn't a violation of the law, but rather her way of "convey[ing] a message of support for the protest." But it was also a violation of the law, if officers wanted to get technical. And Deputy Klein certainly did.Selective enforcement of seldom-enforced laws around demonstrations and protests is a great way to rack up civil liberties violations and their attendant lawsuits. Porter claims the deputy's decision to enforce the states horn ordinance out of the blue creates a chilling effect for politically-inclined drivers like herself.
Ms. Porter regularly drives her vehicle in areas of San Diego County and the State of California where the Sheriff's Department or California Highway Patrol is responsible for traffic enforcement.In driving her vehicle in those areas, Ms. Porter observes rallies, protests, demonstrations, or other events for which she would like to express her support through use of her vehicle horn.Given the citation issued to her and her knowledge of the statute, Ms. Porter reasonably fears that the Sheriff's Department or California Highway Patrol will enforce section 27001 against her if she uses her vehicle horn for such expressive purposes.As a result, Ms. Porter is censoring herself by refraining from using her vehicle horn for expressive purposes, including but not limited to expressing support for political protests, rallies, or demonstrations.
It seems like a ridiculous legal hill to die on, but it does raise a valid point: if officers are going to use a horn ordinance to selectively punish supporters of certain causes, the state is basically placing itself between residents and their ability (however limited its usefulness in this particular application) to petition their government.This will make for an interesting case. Porter isn't alleging anything but an ongoing First Amendment controversy due to the state's restriction on horn use. The state will likely claim the public is served by a law that discourages people from blowing their horns whenever they damn well please, but those arguments are going to sound kind of ridiculous when actually verbalized. Is a law really necessary to keep horns from blaring constantly? Or has it long been accepted horns do double-duty as expressive speech, delivering pithy messages like "You suck at driving," "You suck in general," "Your ride is here," and "I heartily approve/disapprove of this issue being debated freely in the marketplace of ideas, which is apparently located at Rep. Issa's office at the moment."Whatever the basis for the law, it was pretty clearly used here to express a law enforcement officer's distaste for the message conveyed by Porter, even if the message the deputy received was "I support the people you're currently citing for other legal violations," rather than the one Porter intended to send. Since it would be almost impossible to carve out a protest-only waiver on horn restrictions, the court either has to find the law unconstitutional in whole or decide it can be selectively used to punish ostensibly political speech. However it decides to handle this, it should be a fun case to watch.