In the midst of an exciting Supreme Court session, there are two significant cases awaiting a cert decision that have thus far generated surprisingly little media buzz considering the important questions they raise: Antonio Rios v. United States and Mohamed Osman Mohamud v. United States. CDT joined amici curiae briefs in both cases this summer, urging the Supreme Court to grant certiorari.
Rios, currently scheduled for conference tomorrow, Friday, October 27, centers on the question of whether law enforcement officers must secure a warrant to obtain real-time cellular phone data. At such conferences, the justices of the Supreme Court decide whether to hear a case. The Court already decided to hear Carpenter v. United States, in which it may decide whether a warrant must be used to obtain stored cell site location records that reveal the past location of a person.
In Rios, law enforcement did obtain a warrant to track Antonio Rios via his cell-phone. However, when Rios challenged the warrant for lack of probable cause, the court found that a warrant was not required to begin with: “[w]e have already held that individuals do not have a reasonable expectation of privacy in the real-time location data that their cellular telephones transmit, making it unnecessary to obtain a warrant to obtain such information.” Rios, 830 F.3d at 428-29 (relying on United States v. Skinner, 690 F.3d 772 (6th Cir. 2012)). The Skinner court’s holding rested on a flawed analogy that individuals voluntarily carry their phones and thereby acquiesce to monitoring akin to individuals who use public roads, who have no expectation of privacy when driving on such roads (United States v. Knotts 460 U. S. 276, 281(1983)).
Rios’s holding conflicts with Shawn Alvin Tracey v. State of Florida, a Florida Supreme Court case, in which the court determined that a warrant is required before law enforcement can obtain real time location data because they found there to be a “subjective expectation of privacy of location as signaled by one’s cell phone – even on public roads,” and because there may exist an objective view that this location data should be private according to the Katz “reasonable expectation of privacy test.” See Katz v. United States, 389 U.S. 347, 361 (1967).
If it were to grant cert, the Supreme Court would have the opportunity to resolve a circuit split, and answer a question that impacts many Americans. Millions of Americans have cell phones, and there is very little an owner of a of cell phone can do to prevent her location from being tracked, either due to hardware installed on the phone or the phone pinging to cell towers. Further, law enforcement officers cannot predict when their tracking of an individual will result in them tracking said person into Fourth Amendment protected spaces, like a home. This is a vital issue as law enforcement officers increasingly turn to communications service providers for this data. The Supreme Court weighing in on this matter could be a great victory for the Fourth Amendment if it determines law enforcement must first obtain a warrant.
Mohamud is scheduled for conference the first week of November, and concerns the warrantless surveillance of Americans that occurs via the FISA Section 702 surveillance program, which sunsets Dec. 31, 2017. Relying on their Section 702 authority, the government annually intercepts billions of communications for the purpose of gathering foreign intelligence information by targeting foreigners abroad. In Section 702 surveillance, the communications of people in the U.S. are ‘incidentally’ swept in. This case seeks to resolve two pressing questions: (1) Does Section 702 violate the Fourth Amendment? (2) Does Section 702 violate Article III?
Mohamud is the first challenge to Section 702 surveillance to reach the Supreme Court and centers on Mohamed Osmun Mohamud, an American citizen who was charged and convicted in 2012 of plotting to bomb an Oregon Christmas tree lighting ceremony. Post-conviction, it was revealed that Section 702 data was likely used in his trial, a practice he challenged as an unconstitutional search. In other words, the government conducted surveillance to gather foreign intelligence information, and Mohamud’s content was swept in. This content later became a part of the FBI’s database, in which Section 702 data has been integrated. The FBI may have accessed this information after querying his name in its database. This is how the FBI can get around the warrant requirement to gather Americans’ communications, and is known as the back-door search loophole.
The Ninth Circuit in U.S. v. Mohamud held that the Fourth Amendment does not apply to communications of an American that were intercepted incidentally and searched without a warrant. This dangerous precedent allows law enforcement to do an end-run around Americans’ Fourth Amendment rights, and enables the continued use of the backdoor search loophole in criminal trials, one of the most controversial aspects of Section 702. The court also determined that Section 702 does not violate Article III because the FISC either approves or rejects certifications, incorrectly analyzing what the article requires. CDT argues that this use of Section 702 does in fact violate the Fourth Amendment and violates Article III’s requirement that a judge only decide matters related to a “case and controversy,” which necessitates more particularity than currently exists in FISC proceedings under Section 702.
Mohamud brings to head a challenge to a decade-long surveillance program that is now under consideration for renewal and impacts countless Americans. One of the most important questions that Congress is considering in connection with that debate is whether to close the backdoor search loophole, and if so, how to do it. Section 702 grants the U.S. government broad authority to warrantlessly collect, retain, and search Americans’ international communications. It is time for this authority to be reined in, and for use of Section 702, which is limited to targeting foreigners abroad, to search the communications of Americans to be declared unconstitutional.
Both Rios and Mohamud present the Supreme Court an opportunity to resolve fraught privacy and civil liberties issues. We eagerly await the Supreme Court’s decisions, and hope that certiorari will be granted in both cases.