TIMOTHY IVORY CARPENTER, Petitioner,

v.

UNITED STATES OF AMERICA, Respondent

 

BRIEF AMICI CURIAE OF THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS AND 19 MEDIA ORGANIZATIONS IN SUPPORT OF PETITIONER

SUMMARY OF ARGUMENT

This case concerns the constitutionality of the warrantless acquisition by law enforcement of histor­ical cellular telephone data revealing a comprehen­sive picture of an individual's location and movements. In this case, the government sought the data of a criminal suspect; but the standard govern­ing such data adopted by the U.S. Court of Appeals for the Sixth Circuit below and advanced by the gov­ernment here applies equally to the data of any cell phone user, including journalists. Because the Fourth Amendment's prohibition against "unreason­able searches and seizures" plays a vital role in pro­tecting First Amendment rights, the question presented is one of particular importance to journal­ists and news organizations. Absent meaningful Fourth Amendment protection for records like those at issue in this case, activities protected by the First Amendment-including newsgathering, speech, ex­pression, and association-will be chilled.

The Fourth Amendment's protection against un­reasonable search and seizure is historically linked to the First Amendment's protection of the free press. As this Court has long recognized, the Fourth Amendment was ratified in response to the pre­revolutionary practice of arresting publishers and confiscating papers to stifle dissenting viewpoints. The press's and the public's right to expressive and associational freedom therefore informs the scope of the Fourth Amendment's protection.

The records at issue in this case implicate precise­ly those rights. Historical cell site location infor­mation ("CSLI")-data gleaned from cell towers that creates a record of an individual's location over time-can provide an intimate picture of an individ­ual's political, professional, and religious associa­tions. Such information can also reveal details about the news gathering process, including reporters' communications with their sources, because the practical realities of contemporary newsgathering require journalists to carry and use cell phones on a near-constant basis. Due to the revelatory nature of location information, CSLI can be invasive even when it follows movements over a much shorter peri­od of time than the 127-day tracking at issue in this case. The government's ability to acquire CSLI without meeting the Fourth Amendment's probable cause standard allows law enforcement to easily and routinely surveil both sources' and journalists' ex­pressive, associational, and newsgathering activities, chilling individuals' willingness to engage in such ac­tivities.

In accord with the historical link between the First and Fourth Amendments, this Court has in­structed lower courts to apply the Fourth Amend­ment with rigor when a search or seizure might implicate First Amendment interests. Because CSLI reveals an individual's First Amendment­ protected activities, it falls within the core category of information that the Fourth Amendment was de­signed to protect from warrantless surveillance. The U.S. Court of Appeals for the Sixth Circuit, below, however, expansively and erroneously applied the third-party doctrine to deprive the CSLI records at issue in this case of any Fourth Amendment protec­tion. This ruling affects not just the rights of criminal suspects, but also the rights of any individual whose records could be relevant to any criminal in­vestigation, which may include journalists.

CONCLUSION

For these reasons, amici respectfully urge this Court to re­verse the U.S. Court of Appeals for the Sixth Circuit and to hold that the acquisition of CSLI rec­ords must satisfy the Fourth Amendment's requirements.