September 13, 2018

Here’s one more 4th Amendment victory for Downsize DC

You won what might be the biggest Supreme Court decision of the last session Retweet

We have ANOTHER victory to report. This one is Carpenter v. U.S. Downsize DC Foundation and, Inc. filed an amicus brief in this case. 

  • It’s being billed as, “The Supreme Court’s groundbreaking privacy victory for the digital age.”
  • Another analyst writes “From now on, we’ll be talking about what the Fourth Amendment means in pre-Carpenter and post-Carpenter terms.”

Although the decision was 5-4, we prefer to score it 6-3 in our favor because Justice Gorsuch’s “dissent” was even stronger than the majority opinion written by Chief Justice Roberts! And Gorsuch suggested several ways property rights could’ve (should’ve) been invoked — in much the same fashion our amicus brief did.

Carpenter was about gathering your private individual location data, generated by your cell phone. Prosecutors could go to your cell phone provider, and they didn’t bother to get a warrant. The Government has long argued that it has this power because the records are in the hands of a “third party.”

Based on this “third party doctrine,” the Government argued that CSLI (cell site location information) constituted normal “third party” records owned by the phone company, not the property of the person who owns the cell phone and generates those records via their movements. The government thinks it can merely obtain them without a warrant, from the phone company.

Our efforts in the Carpenter case started off as the Graham case. Ultimately you helped us file not one, not two, but three amicus briefs on CSLI and the “third party” doctrine!

And it paid off!

We didn’t get exactly what we sought in Carpenter. But the consolation prize was based on victories we won years ago in cases where we filed influential amicus briefs — particularly the landmark Jones case and a follow-up called Riley. Plus…

Some of the language in the decision mirrors arguments that we made!

Timothy Carpenter’s wireless carrier turned over CSLI for his phone. The Government was able to obtain 12,898 location points in Carpenter’s movements over 127 days. Live surveillance requires tons of manpower, and it would have been impossible to be so precise.

The primary argument in our amicus brief was that you, the mobile phone owner, have a property right in CSLI. CSLI is your papers and effects, in a high tech sense.

Justice Gorsuch’s written opinion strongly hints that Mr. Carpenter has a property interest in his CSLI. He couldn’t have been harsher towards the “third party” doctrine. His argument has a very libertarian feel to it. Nevertheless, his choice to dissent means the ruling was technically only 5-4 in our favor.

The majority opinion, written by the Chief Justice and joined by the four liberals on the court, utilized “back-up” reasoning we’d also supplied in our briefs.

First, we also had a hand in Riley v. California (consolidated with U.S. v. Wurie, where the Supreme Court ruled unanimously that cops couldn’t search cellphones during stops and arrests without a warrant or permission). There, the Court observed that ‘modern cell phones which are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.’  In other words, from that Fourth Amendment list of property rights, your cell phone might be your part of your person. Justice Roberts cited Riley as precedent to this Carpenter decision.

Second, Justice Roberts’ complicated solution boils down to the subject line of one of our newsletter messages about the Carpenter case (when we were in the Graham-stage of it) — Must you live off the grid to enjoy Fourth Amendment protections? That’s unreasonable, and Roberts said so, directly.

Third, we achieved our second most important objective the Carpenter brief. Professional Supreme Court observers think the “third party” doctrine is on life support and its prognosis is poor. Hooray!

And if you think about how many apps you have tracking your movements for beneficial reasons, you should be pleased by that!

You should also be pleased that we have now two brand new Fourth Amendment victories to report for our amicus brief program (including the report from our previous Dispatch regarding our victory in the Collins case).

Your support of our efforts has made our amicus program possible. But I want to toot our horn for a moment…

We deliver a lot for a little. We’re lean and assertive. For most of these cases, we raise less than $4,000. And as for value…

It’s no stretch to say that the Jones case, which restored property rights to Fourth Amendment jurisprudence, was “our case.” The lawyer for a major think tank applauded how principled our brief was in that case, but suggested that the only way clerks would read it was for comic relief. We’d simply gone too far in his opinion. But we got the last laugh.

We have a simple philosophy: Hold up the standard. Stand on principle. Don’t be afraid to criticize bad decisions. Ask for what you want. Don’t compromise with yourself.

If you don’t ask for what you want, how will you ever get it? You should see the number of decisions where a Justice complains that his or her “hands are tied” because “no one asked” for some specific constitutional remedy. So, we constantly ask that the plain words of the Constitution be applied to limit state power. And, in a process that evolves slowly, we’ve made remarkable progress.

But we need your help to continue this program. is partnering with the Downsize DC Foundation, home of the Zero Aggression Project. When you click this link, you’ll be taken to the ZAP contribution form. That way your contribution can be tax-deductible if you itemize.

Please consider a generous one-time contribution or monthly pledge.

Jim Babka & Perry Willis, Inc. &
Downsize DC Foundation (home of the Zero Aggression Project)

P.S. We’ve done so much work and achieved such incredible results fighting warrantless searches and restoring the Fourth Amendment, that it’s hard to explain all of it concisely. Clearly, details have been left out of this report. The Carpenter decision is 119 pages long! But if you’re a donor who believes so much in this project that you’d like to make a tax-deductible contribution of $4,000 or more, then please know we’d be happy to schedule time to speak with our staff and our lawyers to brief you on the state of the Fourth Amendment law after these cases have been decided. We’d answer your questions and discuss the plans for our amicus program with you. We’ve also made significant progress fighting anti-First Amendment, incumbent protection laws. We’d love to cover that with you, as well. Just hit Reply to this message and request that meeting. We’ll be in touch to set it up.

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