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Courts in a deepening muddle over location surveillance

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  1. First Amendment
RCFP has weighed in on these debates because location tracking can burden important First Amendment interests.

When the U.S. Supreme Court decided Carpenter v. United States three years ago, ruling that the Constitution requires a warrant when law enforcement seeks historical cell-site location information, the opinion was widely greeted as a watershed — one that worked not just one but a whole “series of revolutions in Fourth Amendment law,” as Georgetown law professor Paul Ohm put it. But as a pair of recent decisions from the courts of appeal demonstrate, there remains considerable uncertainty about what, exactly, Carpenter is supposed to mean, and whether the Constitution provides meaningful safeguards against other forms of location surveillance.

The Reporters Committee has weighed in on these debates — first in a friend-of-the-court brief in Carpenter itself, more recently in a First Circuit case that we’ve discussed in this newsletter — because location tracking can burden important First Amendment interests. If there were no constitutional limits on the government’s ability to digitally trail reporters to source meetings, for instance, the obvious effect would be to chill confidential contacts with the press. But lower courts, post-Carpenter, have taken very different approaches to implementing that decision’s recognition that such monitoring can reveal not just a person’s “particular movements, but through them his familial, political, professional, religious, and sexual associations.”

On the “Carpenter worked a revolution” side of the divide is the Fourth Circuit’s June decision in Leaders of a Beautiful Struggle v. Baltimore Police Department, a challenge to Baltimore’s now-defunct aerial surveillance program. There, the Fourth Circuit — over a vigorous dissent — read Carpenter to mean that a surveillance system that in practice “opens an intimate window into a person’s associations” implicates the Fourth Amendment, even if the system’s coverage falls short of enabling “perfect tracking.” And it did so despite prior Supreme Court precedent upholding short-term instances of aerial surveillance against constitutional challenge.

By comparison, the Seventh Circuit’s decision last month in United States v. Tuggle offers a stingier account of what Carpenter meant for Fourth Amendment rights. In rejecting the argument that 18 months of round-the-clock camera surveillance of the defendant’s home should have required a warrant, the court acknowledged that the monitoring captured “an important sliver of Tuggle’s life” but declined to find that anything short of an “exhaustive picture of his every movement” triggered Carpenter’s concerns. In fact, the court went on to insist, “until the Supreme Court or Congress instructs otherwise, we will read Carpenter as limited to the unique features of the historical [cell-site location information] at issue there.”

We think that result is unreasonable, as we explained in our brief to the First Circuit — the next appeals court that will likely weigh in on the issue. But however that case turns out, Carpenter’s reception so far makes clear that, unless Congress or the Supreme Court speaks clearly to the issue, the courts will continue to divide in their willingness to extend Carpenter beyond its facts.

We’ll continue to watch these issues as they develop.

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The Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press uses integrated advocacy — combining the law, policy analysis, and public education — to defend and promote press rights on issues at the intersection of technology and press freedom, such as reporter-source confidentiality protections, electronic surveillance law and policy, and content regulation online and in other media. TPFP is directed by Reporters Committee attorney Gabe Rottman. He works with Stanton Foundation National Security/Free Press Legal Fellow Grayson Clary and Technology and Press Freedom Project Legal Fellow Mailyn Fidler.