Sorry, I'm late.
I had to stop by the Whites Museum again and get the fingered at FDR.
We know Al-Qaeda, Zawahiri is supporting the opposition in Syria.
Are we supporting Al-Qaeda in Syria?
It's a proud day for America, and by God, we've kicked Vietnam syndrome once and for all.
Thank you very, very much.
I say it, I say it again, you've been hacked.
You've been took.
You've been hoodwinked.
These witnesses are trying to simply deny things that just about everybody else accepts as fact.
He came, he saw us, he died.
We ain't killing their army, but we killing them.
We be on CNN, like, say our names, been saying, saying three times.
The meeting of the largest armies in the history of the world.
Then there's going to be an invasion.
All right, you guys, introducing Brent Skorup.
He is from the Mercatus Center and from George Mason University, and he's got this article in Washington Times from a year ago with Melody Calkins, and it's called, A Supreme Court Call on the Third Party Doctrine.
The Fourth Amendment should apply to personal phone data.
So now the Supreme Court, this was when the Supreme Court took up the case, and now they've ruled on Carpenter versus the United States.
Welcome to the show.
How's it going?
Scott, thanks for having me.
It's great.
Very happy to have you here.
So what'd they rule?
Something I want to hear?
You're telling me good news on my show?
It can't be.
Yeah, so there was a partial win for civil libertarians and those who care about privacy and protection of personal data from the government.
Supreme Court this week ruled on this Carpenter case that I wrote about a year ago, and it wasn't a complete win.
I said at the time in another venue that the smart money would say this would be a narrow win, and actually that's how it turned out.
You had Chief Justice Roberts and the four progressives on the court agreeing and protecting the privacy of the defendant.
And I'll say a little bit about the case.
So Carpenter was a defendant, and he was convicted of taking part in some armed robberies in the Detroit area and northern Ohio.
And part of the case, part of the prosecution relied on his cell phone location data.
And so police accessed without a warrant his cell phone information, which I believe was Metro PCS.
They received almost 200 pages of his cell phone information, 13,000 location pings were in that data.
I think it was four months of data, so a pretty substantial amount of records.
And it's pretty conventional for police to seize this without a warrant.
He alleged that this violated his Fourth Amendment rights.
The Fourth Amendment protects us against our houses and the facts and persons against unreasonable search and seizure.
And the Supreme Court agreed and agreed with Carpenter that a search had occurred.
And because a search had occurred, the police needed to get a warrant before getting this phone location information.
Now, but so they ruled back in 1978, though, that as long as you share your information with anyone, then it's up for grabs by them.
And so how is this consistent with that?
Yes.
So in the 70s, the court developed, as you said, this third-party doctrine, this idea.
And that involved cases of bank records and the numbers you called.
And the Supreme Court said in the 70s at the time, and this has been precedent until this week, that any time you turn over information voluntarily to a third party, like a bank, like a phone provider, you have no expectation of privacy to that information anymore.
And a search has not occurred.
So courts would never find an unreasonable search of this information because they would say a search has not occurred.
The Supreme Court this week said because of the sensitivity of this data, of Carpenter's phone information, 13,000 pings, four months of location information, they carved out an exception to this third-party rule.
And there's some – we don't know at this point how broad other courts in the Supreme Court will take this, but they said in this case, there was so much location information that this is protected by the Fourth Amendment, that Carpenter has an expectation of privacy to this data.
So it was a quantitative thing?
I mean, because the phone calls that you make could also be in a very large quantity, right?
Right.
So here's the problem, to crystallize it here.
The third-party doctrine is completely crazy, unconstitutional nonsense by the enemies of freedom on the Supreme Court in 1978.
And so the current case here makes sense, but it sounds like it ought to completely unravel the doctrine.
But you're telling me it's not.
It's just a small exception.
So that's what I don't understand.
It's a small exception.
So some of the more originalist judges, Thomas, for instance, and Gorsuch, had a more textual misunderstanding, and they dissented, partly because they don't agree with this third-party doctrine.
So the third-party doctrine, as I said, it's a partial win for privacy advocates.
They did say that this special type of information, this location information, and the court said something along the lines of if location information over a span of seven days, that is sensitive.
But as you suggested, this is not an ideal situation.
There's a lot of criticisms of this third-party doctrine.
Seven days is the thing?
This is arbitrary and capricious.
I mean I kind of appreciate it.
Yeah.
Yeah, I mean the court wanted to create this exception.
The majority created this exception.
They wanted to put some certainty on it, and so there was this language about seven days.
So yeah, not an ideal ruling for lower courts who want clarity, but it is a small carve-out, a little more privacy for consumers.
But the larger battle over the third-party doctrine continues.
All right, Shaul.
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Thanks.
Well, as I've come to discover traveling, doing speeches and stuff like that, I don't even really need to bring a laptop with me anymore.
I mean, certainly a lot of my work I need a real PC.
But I could go a couple of days without one at least and have virtually everything I need on my phone.
You know, my banking, all of my communications, and this, that, the other thing.
It's a little supercomputer compared to 1999 or something.
It fits right in my pocket.
So is it even a phone at all?
You know what I mean?
It has a phone app on it, but it's basically my computer.
So I wonder how much that plays into the way that they reason this.
That this is, we call them phones, but let's get real, right?
Yeah, one of the interesting, and so a couple of years ago, the court recognized that a search of your personal cell phone is a search, and generally police must get a warrant.
And in this case, they protected records you've turned over, willingly or inadvertently or not, to cell phone companies.
So the court is slowly clawing back some privacy.
And the interesting thing about the Carpenter case that came down this week was the majority had a clear eye on future trends in technology.
As you said, there's a lot of information captured by our phones and transmitted, perhaps inadvertently, to Google, to Facebook, to our cell phone carriers.
And the court clearly had its eye on this and mentioned where technology trends are going.
And I think that's one reason why they wanted to have a little wiggle room on the third-party doctrine and protect consumers' privacy, because these trends are going to where third parties are holding more and more of our data with Alexa and video gaming and all the connected devices we have.
And you know what?
I should have not ranted earlier about the third-party doctrine in the first place, but it is completely crazy, right?
That's not just me.
Yeah, the Cato Institute filed in this case, and the organization I respect a lot and really, really enjoyed their brief.
And they encouraged the court to get beyond this third-party doctrine, which is, as you said, not following the Constitution and kind of a vague standard.
Well, I mean, just think about that.
If you do business with anyone, that business is public information, or at least not private in the sense of your right to keep it from the government.
And they just made that up.
What if I have a contract with AT&T that says, hey, you're not allowed to share my information with anybody?
Their ruling overrules that?
Based on what, magic or something?
Yeah, and this gets to some of the tensions in Fourth Amendment law, which is, one, this third-party doctrine, and two, this expectation of privacy, which is also criticized, because your privacy gets less and less the more you learn about how your information is being used, and that's kind of a perverse system as well.
Oh, in other words, they can keep arguing that, look, this guy knows that we're violating his privacy, so he doesn't have the right to expect it anymore.
That's very secular and wonderful.
I think Justice Scalia, the late Justice Scalia, had a dissent a few years ago making this point that if they broadcast that you have no privacy to this information, then you lose that expectation of privacy and you lose Fourth Amendment protection.
But yeah, that's another battle for another day.
This was a partial win for privacy.
It was an exception made to the third-party doctrine, but there's tremendous stress on the third-party doctrine.
We might add here, too, that cops can come up with all kinds of ridiculous conspiracy theories based on data-like location information, but all they really know is a dot on a map.
They don't know who had the phone at that time.
They don't know what the purpose was.
If there were whatever ten other people there, the cop might say, oh, look, this person is linked to these people.
We know this is how they kill people in Afghanistan.
It's based on who was ever near anyone else.
And this kind of thing.
They do it all the time.
So that's the way that they think.
I'm not saying drone strikes here, but I'm just saying in terms of incriminating people based on association, whose car have you ever ridden in?
Whose living room have you ever sat down in?
And what does it mean?
Now it's up to them to come up with suspicions about things like location data that otherwise are none of their damn business in the first place.
Yeah, and it's these trends in technology that we turn over massive amounts of GPS.
If you have a smartphone with GPS on, it's transmitting to Google and Facebook and other tech companies.
I mean, where you are, they use it for advertising purposes, of course.
But police are frequently using this information, clearly aware that there's a lot of data collection going on with police.
And I think this Carpenter case stems the tide a little bit, requires police to, in many cases, get a warrant before getting large amounts of someone's location information.
Yeah.
All right.
Well, listen.
Well, and you know what?
I guess it really is a point, too, about the fishing expedition, that that's really a thing, right?
The difference between investigating a crime to figure out who did it versus looking to see whether someone has ever crossed a legal line and is that something that you can get them on.
And that's another thing that more and more we can expect in America.
In fact, I think at the Justice Department, they even literally rewrote the guidelines under Obama, was it, about that this is fine now.
Yeah, and I mentioned in the op-ed that you mentioned at the top of the show that police are doing these fishing expeditions.
And in Southern California a couple years ago, they were using license plate readers and outside a gun show, collecting everyone's license plates in the parking lot.
Boy, that could be this whole interview, right?
Did you hear that, everybody?
Driving through the parking lot at the gun show.
That's something straight out of a dystopian, nightmare science fiction, Outer Limits episode from 15 years ago.
Yeah, and Conservatives at the time raised concern about this.
This is the kind of fishing expeditions that new technology, now that law enforcement have it, it creates these new tensions.
And I expect we'll see more litigation over time about what's the role of government and what's an unreasonable search and seizure of our effects.
All right, hey, listen, and you know what?
That is a very deliberately vague term in the Fourth Amendment.
They made it that way on purpose, right?
Effects, what's effects?
Yeah, that's right.
All of my property, that's what it is.
It can be modernized, for sure.
All right, hey, listen, I really appreciate your time on the show today.
It's been good.
Thank you for having me.
All right, you guys, that is Brent Skorup.
He is a Senior Research Fellow at the Technology Policy Program at the Mercatus Center at George Mason.
Oh, I said and, but that's the same thing.
Mercatus.
They're good, man.
Libertarian stuff.
All right, you guys, and that's the show.
You know me, scotthorton.org, youtube.com slash scotthortonshow, libertarianinstitute.org.
And buy my book, and it's now available in audiobook as well, Fool's Errand, Time to End the War in Afghanistan.
Hey, it's endorsed by Ron Paul and Daniel Ellsberg and Stephen Walt and Peter Van Buren and Matthew Ho and Daniel Davis and Anand Gopal and Patrick Coburn and Eric Margulies.
You'll like it.
Fool's Errand, Time to End the War in Afghanistan.
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Thanks, guys.
