we'll hear argument this morning in case sixteen four zero two carpenter versus united states before we commence though i'd like to advise counsel that provide an additional ten minutes of them to their argument time and to get out and if you have trouble filling  you mr west were thank you mr chief justice and they please the court at issue in this case is the government's warrantless collection of one hundred twenty seven days petitioners location information revealing his locations movements and associations over a long period as in jones the collection of this information is a search as it disturbs people's longstanding practical expectation that their longer term movements in public and private spaces will remain that longer term periods or aggregations of cell site location information is a search and requires a warrant we are not asking the court to overturn those older cases we think that the lesson to be drawn from riley cairo is that any extension of pre digital precedents to these kinds of digital data must rest on their own bottom how would you distinguish miller miller involves more limited records certainly they could reveal some sensitive information of a more limited records and as this court held they were voluntarily conveyed in that they were created by the passing of the go shabelle instruments into the stream of commerce to transfer funds what we have here is both more more why is it more sensitive why is cell site location information more sensitive than bank records which particularly today when a lot of people don't use cash much if at all a bank record will disclose purchases it will not only describe as everything that the person buys it will not only disclose locations but it will disclose things that can be very sensitive i absolutely agree justice alito that information and break records can be quite sensitive about what it cannot do is chart a minute by minute account of a person's locations and movements and associations over a long period regardless of what the person is doing at any given moment i understand that but why is that more particularly other things particularly because the information in the bank records just as a leader refer to are not publicly known your whereabouts are publicly known people who see you surveillance officers can instrument that's an interpersonal transaction where a person has full knowledge that they are putting something into the stream of commerce to transfer funds directed at their their bank as their five concurrent justice is made clear in jones although we may when we step outside have a reasonable expectation that someone may see where we go on a short period nobody has expected in a free society that our longer term asking you about a tower down crime happens at a bank the seller says or doesn't say that the robber she saw the robber on the phone at some point could the  police just get a tower down the cell site to see who was in that area at that time justice sotomayor yes and i think that would not be affected at all by by this case that was so short what's the difference the police then say to the telephone company let me see the records for that hour or for that day or whatever then the duration of the crime could get that information but now there are hamming so we can't get the eight but we can get it from the one so your honor we've suggested twenty four hours i think that the most administer ball line if the court wishes to  information might be worth getting others will be more difficult now in in this case it doesn't matter to us actually where the court draws that line because one hundred twenty seven days of the longer term is more corroborative perhaps of  well your honor we would fully expect that if the government obtained a short period of data that was appeared to be in call the tory that would provide probable cause for a warrant to gather a much wider amount of doubt if it's needed  in the pretrial process the defendant him or herself could obtain other records from the carrier and use those as it's called the tory evidence though the concern here is with the privacy invasion which is quite severe over the long term over these more than four months of data it will mean on the basis for the twenty four hour however long you want it to be an exception it seems to me if there's going to be protection extended to the information it has to involve some compromise of the third party doctrine and if that is altered i don't see why it wouldn't also apply to you know one day of information so the only other court to address this question is the supreme  of massachusetts which drew the line at six hours we have suggested twenty four hours because i don't understand what is the line we're drawing it seems to me the line is between information to which the authorities have access information which they don't i don't know why we're bothering  line between six hours three weeks whatever while you're under certainly we would be perfectly happy with a rule from this court requiring a warrant as a person a matter what we are trying to advance is a suggestion to the court that takes into account the rationale concurrence is in jones and it accords with people's reasonable expectation that although police could have gathered a limited set or span of past locations traditionally by chemistry witnesses for example never has the government had this kind of a time machine that allows them to aggregate a long period of people's movements over that other thing the government's never had is the ability to go back even for twenty four hours and basically test everybody everybody in the whole community or anyone who happened to be there so i don't know why that isn't a consideration that cuts against preserving twenty four hours two months ago the government didn't have the capability of tracking a particular individual or every individual when they find out later that's the one they want so  innocent people that's not the same concern i think directly before the court here which i do the same concern here and that's why i'm differentiating between incidence related searches and basically tracking that searches when you're looking at what a person is doing over one hundred twenty seven thirty forty even twenty four hours which is it's not related to any legitimate police need to invade the privacy of a person over a twenty four hour period unless there is a suggestion that the crime occurred during that entire twenty four hour period so that's why i asked use there a difference between saying if police have cause to believe a crime has been committed can they asked for related to that individual crime even if it happened on one day a second day a fourth day attempt there so long as they're limiting their search as related to a criminal activity as opposed to a dragnet sweep of everybody's intimate details right now we're only talking about the cell sites records but as i understand  a cell phone can be pinged in your bedroom it could be ping actually doctor's office it can ping you in the most intimate details of your life presumably at some point even in a dressing room as your own dressing so i am not beyond the belief that some day a provider could turn on my cell phone and listen to my conversations so i'm not sure where you twenty four hour rule comes from shouldn't your rule be based on incident related rather than at the essence of the your complaint which is that we're permitting police to do a dragnet search of your in your honor first you're absolutely correct that today as the seven years that have elapsed since the data was gathered in this case never technology has advanced quite markedly and today not only is data gathered for phone calls but also text messages and data connections including when a phone is in a pocket possibly in automatically checking for new e mails or social media messages or weather alerts and today the government is able to obtain historical  locate a person as precisely as half the size of this courtroom you know mr west i grew with you that this new technology is raising very serious privacy concerns but i need to know how much of the existing precedent you want  to overrule or declare obsolete and if i could i'd just like to take you back briefly to to milton and ask on what grounds that can be distinguished you don't say we should  would and you have you said the information here is more sensitive we maybe could agree to disagree about that i don't know but what else would one of the ground ken miller possibly be distinguished so both miller and smith identified at least two factors to take into account in the reasonable expectation of privacy analysis the nature of the records or their sensitivity and whether they're voluntarily conveyed and i think here there's also a great distinction on voluntariness unlike a negotiable instrument passed to the commerce or for that matter a phone number punched into a touch tone phone people when they make or receive a phone call receive a text message and certainly when their phone is automatically making a data connection do not provide their location information to the carrier well i mean that's a debate empirical point whether people realize what's what's going on and there's a reason to think maybe they do i mean people know there were all these commercials can you hear me now our company has lots of towers everywhere what do they think that's about the contract the standard metro p c s contract seems to say and i guess we don't have the actual contract in the record here does seem to say that advise the customer that we can disclose this information to the government if we get a court so i don't know whether that will hold up and even if it were to hold up today what will happen in the future if people everybody begins to realize that this is this is provided if you have enough police t v shows where this is shown and everybody will know about it just like information is even accessible to much less retained by the service writers second i agree that the metro p c s contract in in effect in two thousand and ten and the other companies privacy policies today do disclose that documents in either direction here would to paraphrase the court and smith threaten to make a crazy quilt of the fourth amendment because we may end up with a hinge in constitutional protections on the happenstance of company's policies but those those contractual documents constitution so if there is a reasonable expectation of privacy in these records then a warrant is required but even looking at the statutory framework itself the government points to the stored communications act as the the law requiring disclosure but when congress amended that statute in one thousand nine hundred four it provided two mechanisms for access to records twenty seven or three d order as used here and a warrant under section twenty seven zero three c one a and i think a person looking at that  significant weight to the congress's determination that there should be and will be some judicial supervision over this over these investigations today there are over three hundred thousand and he's the i mean the act was more necessary when there were fewer cell phone no not now just the opposite not at all your honor my point is that congress quite clearly was not thinking about the existence of and certainly not  enforcement interest in historical site location information there's nothing in the historical legislative record for the members of the court who would look there to indicate any cognizance of these kinds of records so again my question is you give zero weight in your argument to the fact that there is some protection your honor we acknowledge fully that there is some protection a touch more than a traditional subpoena because a judge is involved but we think it is insufficient in the context of records said the disclosure it issue doesn't disclose the content of the conversation as the dissent pointed out the provider had access to the to the content of the conversation yet we drew a line in saying so phone numbers telephone numbers are disposable because everybody knows that the telephone company is keeping track of those numbers you get it in your phone bill at the end of each month but we said people don't know or even if they realize that the phone company can listen into their conversation that there's a reasonable expectation that the phone company won't urgent circumstance a death threat almost a special needs circumstance that suggest as you started to say earlier that it never was an absolute rule that third party doctrine we limited when in bond in ferguson when we said police can't get your medical records without your consent even though you've disclose your medical records to doctors at a hospital they can't touch your back to feel what's in your bag because an individual may disclose his or her bag to the public i think one of my colleagues here said you can keep why shouldn't people expect others to touch their bag as well well in the court said no because he exposed what your bag looks like but you don't have an expectation that people are going to touch your bag so is it really that far off to say yes i can believe that my location at one moment or other moments might be searched by police but i don't expect them to track me down for twenty four hours over one hundred twenty seven days absolutely your honor we agree that the content of electronic that was not the contents of communication it was location over time in public but it was still protected and a great many highly sensitive digital records like search queries enter into google a person's complete web browsing history showing everything we read online  medical information or fertility tracking data from a smartphone app would be vulnerable in suppose that in this case there was a subpoena for the the numbers called from the cell phone would there be a problem with that in your opinion no your honor i think that would fall squarely within the rule of smith it would certainly be more voluntary and i think we can disagree but i think less sensitive you think the numbers called the people that somebody is calling is is less that's less sense of the person's location i thought certainly how were we going to judge the sensitivity of the information like this but i think that the devotes a tremendous amount of time to surveillance with with multiple vehicles multiple agents and you say if it lasts for too long when it's an invasion of privacy no i think you know people's normal expectation is that that typically won't happen but if it does the fourth amendment does not protect against that now surely if we're going to talk about normal expectations and we have to make the judgment it's seems to me there's a much more normal expectation that businesses have your cell phone data i think everybody almost everybody knows that  jones laid out an analysis of why there's a difference between using technology to make that trailing telling possible in every case as opposed to the very rare circumstance where it might happen but here it's even a step more removed here never could police have decided today to track me twenty four hours a day seven days a week five months ago that is a categorically new power that is made possible by these perfect tracking devices that ninety five percent of americans carry in their pockets is to us or can i ask you about your understand of the state of the technology now because the government represents and in its briefs and it has those pictures and it's briefs suggesting that you can you get the information that's gleaned from this is is very it's sort of general it's vague it doesn't to pinpoint exactly where you are and in order to make affective use of it it has to be combined with many other pieces of information and you know you know a do you agree with that would be what is your view of the relevance of the fact that information may not be useful in itself but may be useful in combination with other information does that make a difference justice kagan so on the first point we agree that as of twenty ten and twenty eleven where the records in this case come from they were generally less precise than the g p s data in jones but we don't think that that makes a difference for the fourth amendment rule for a few reasons first to go to the second part of your question even in jones the data last person that was accurate only to within fifty two hundred feet and only tracked where a car went so if a person parks in a parking lot or on a street that g p s data by itself can't tell if they go to a jewelry store for a stick up or a medical clinic for a check up or a cafe to meet with a friend some other amount of evidence or inference was required that makes it no less a search  that the same is true here now in the intervening seven years the data has become markedly more precise of the proliferation of small cells which can have a broadcast radius as small as ten meters about half the size of this this court room the ability now of providers to estimate the actual location of the phone based on the time an angle that the signal from the phone reaches the towers and the just skyrocketing amount of data usage by normal smartphone users means that even the large traditional cell towers are much closer together in urban  and suburban areas so the distance between less so they are significantly the location information is more precise it's also more voluminous because now data connections create location information and so the one hundred one data points per day on average in this case pale in comparison just what it was to us along those lines one more kind of technical question there was a suggestion the breach that some of this information is required to be kept by governmental regulation the one program do you have any insight on that for us yet that there's no there's no direct requirement that these location records be kept and what is true is that the capability of the cell companies to track cell phones in real time is a government mandate as part of th one one system that is that capability is related to the the capability that is relatively new or to estimate the actual location of the phone based on time and angle of the signal historically i mean in but there's there's no data retention mandate for snoop had a fall of memory and didn't follow people for one hundred twenty seven days the electronic information is infallible you can follow them forever that's a big change so i agree but that changes they are it's there in many aspects of life not just location now on the other side of it is that probably not sure but probably police and f and others when they get word of white collar crime money laundering drugs financing terrorism we could go through the list large numbers of cases of important criminal cases they don't have probable cause they do have reasonable grounds to think and they start with bank records with all kinds of financial information purchases so if i accept your law there's no such thing in the law as location there is but i mean people immediately say and why and when they say why we're going to have to say something like x days at least arbitrary but x days are very personal it was given under circumstances where they didn't know they were giving it or they certainly didn't consent to it and that is basically the reason maybe throw a few other things in there to get an exception for miller that will be taken immediately to the lower courts and eventually here and people will say well what about financial information i e credit card purchases where the most intimate credit card purchases wherever they are are immediately records and what about and they'll think of five others i can only think of what or two but believe me the legal profession and those interested in this understand it very well so where are we going is this the right law how do we in fact write it not you see for a location i have less trouble without but where is it going can you say it's a very open question but i'm very interested in your reactions just as prior i think in future cases in the lower courts and perhaps back before your honor's it would be relatively straightforward to define discrete categories of information that may be protected i think perhaps certain other types of location records information about the state of the body like heart rate data from a smart watch or fertility tracking data from a smartphone app information about the interior of a home for example from a smart thermostat that knows when the homeowner is at home and perhaps what room the in communicative contents not only the contents of e mails but i think search queries to google not every record will or should be protected and it i think it is totally consistent with the role of the lower courts to take and interpret a principle from this court and begin to apply it and over time clarity will emerge you want to add going to them which is a maybe you want to add one thing because i suspect you'll hear in a minute that all the imperfections of miller given your answer and i'm thinking to i quite agree with you this is an historical location records the five courts of appeals to address this have generated twenty majority concurring a dissenting opinions many of them virtually begging this court to provide guidance for how to protect the sensitive digital records that the court simply could not have imagined four nights ago a lot of what you're talking about in line with the questions concern i think is addressed to the question whether a warrant should issue as opposed to whether a warrant is required under current practice when you're getting w makes a difference if you go in and say i want to search the entire house for anything i can find and if you say i want to search the drawers for business records that we think are related to blah blah blah and so it's the same thing here you yes the technology affects every aspect life doesn't mean that the warrant has to and in terms of reasonable miss if you can focus on you know we want to talk about simply whatever it is purchases because we have reason to believe purchasing the stuff that goes in to make  you know methamphetamine but that doesn't mean we're going to go look at location information your honor we certainly think that the probable cause of particularly requirements of a warrant will do a lot of work to  to focus investigations in investigation like this perhaps one hundred twenty seven days or one hundred fifty two as the original request was would not all be appropriate maybe under a warrant a two or three day span around each of the robberies would actually be particularly relevant to the determination but but our basic submission is that a warrant is required in this context because it's unlike the other subpoena cases that the government has identified in the normal subpoena case this court has  identified two factors that weigh on on the reasonableness categorically of subpoenas first that the recipient complies with that they they select the response of records provide them to the government which is poses less of a risk of abuse and order is lower some lower courts of likened it to a reasonable suspicion standard i think it's probably a touch above your reasonableness but it's certainly short of probable cause it also lacks a requirement for a sworn statement there's no affidavit it's placed magistrate judge by a prosecutor and it lacks a particularities requirement which has led in cases to extraordinarily broad requests we identify in a reply brief one case where the government obtained four hundred fifty four days of historical location data for one defendant three hundred eighty eight for another one hundred twenty seven days here two hundred twenty one days in graham from the fourth circuit with a sore petition currently pending and that is a quite extraordinary amount of time if i could i'd like to reserve the balance of my information and sought to make economic value of it would you have a conversion would your client have a conversion claim for example under state law if you explore that at all so i think it's possible and i think conversion is the closest sort of analogue to what we have  under the fourth amendment on not the cell phone companies in this case function essentially as a witness is being asked to produce business records of their own transactions with customers the cell systems cannot function without information about where the phones are located anyone who subscribes to a cell phone service will communicate that information to towers in order to receive calls the cell phone companies get that information to operate the cell network they'd choose to make their own business records of that information it's not a government mandate they make decisions based on their own business needs about what they're going to retain and when the government comes and asks them to produce it it is doing the same thing that it did in smith it is doing the same thing that it did in miller it is asking a business to provide information about the business his own transactions with a customer and under the third party doctrine that does not implicate the fourth amendment rights but simply created by the company it's a joint venture with the individual carrying the food that person helps the company create the record by being there and sending out the  we will that's certainly true but it's no less true in smith and miller in order for the phone company to have a record of who a person called the person has to make the call the information goes to the phone company the phone company uses that information to route the call here the cell phone provider gets information from the phone about where the phone is so that it can route calls to the phone and that it can rob calls from the phone that's just the basic technological nature of cell phones but it doesn't differ in principle from what was going on in smith and you could say the same thing about miller that somebody has to engage in banking transactions through a bank they write a check they give the check to the bank the bank uses it to carry out the bank's business no they don't give it to the bank they give it to person who gives it to the bank well he did also sort of my i think that there are zillion different ways to carry out financial transactions including some that needed volved giving a check to a person many involved going to the bank directly and having the bank conduct the financial transaction anybody who writes a check understands that the check will be submitted to the bank so the bank  why is it not ok in the way we set about beepers to plan to beeper in somebodies bedroom but it's ok to get the cell phone records of someone who i don't but i know that most young people have the phones in the bed with them all right i know people who take phone soon too public restrooms they take them with them everywhere it's an appendage now for some people if it's not ok to put a beeper into someone's bedroom why is it ok to use the signals that someone is using from that person's bedroom made accessible to law enforcement without probable cause so just sort of my our i will answer the question about cell phone location in a house but i think it's important that the court understand that this case involves very generalized cell sector information that citizen mr driven but we need to look at this with respect to how technology is developing well i think just you know my own work phones in a bedroom now you well there's a distinction between inquiring g p s information from a phone and acquiring cell site information from a business this case involves acquiring cell side information from a business it's a wide area our brief attempted to illustrate how in detroit well this is no different than a telephone company having access to your telephone conversations but we protect those so i think this is a it's very different from it the expectations of privacy about the contents of a one to one communication or a one to many communication are quite different they grow out of the bedrock understanding that a letter mailed through the mail that routing information is available to the government the address of where it's going but put in an envelope you seal beyondblue you can you can yourself control the public disclosure but with telephones  the telephone company could have plugged in and listen to your conversation just as easily as these telecommunications companies can read your e mail says they choose yes we said we would protect mail that is true and i think that that is because there is a different between content and routing information that the court recognized in smith itself we're dealing here with routing information we're not dealing with the contents of communications i agree with you that katz makes clear that incidental access of a provider to the contents of a communication when the kind when the provider is functioning as an intermediary doesn't vitiate fourth amendment protection we're not here to argue that it does we're here to argue that routing information of the sort that was available in smith and the sort that's available here functions has a business record because the business is using it in its transaction with the customer to route the call the content information is being provided through a provider as an intermediary so that somebody can communicate with another person how is this different from jones you know in jones there were a couple of different opinions but five justice as i count it said this this is from justice alito has opinions society's expectation has been that law enforcement and others would not and indeed in the main simply cannot monitor and catalog every single movement of an individuals there was a car for a long period so how is it different from that i think it's fundamentally different justice kagan because this involves acquiring the business records of a provider which has determined to keep these records of the information jones involved government surveillance it involved attaching a g p asked device to the car five members of the court regarded that as a trust potoroos search five other members of the court were prepared to analyze that under reasonable expectations privacy but in both cases it was direct surveillance of the suspect in the crime so the question is why that should make more of a difference than the obvious similarity between this case and jones and the obvious similarity is that in both cases you have reliance on on a new technology that allows for twenty four seven tracking now you're exactly right there were different means but in both cases you have a new technology that allows for twenty four seven tracking by a number of justices in jones that that was an altogether new and different thing that did intrude on people's expectations of who would be watching them when so that the people who are watching in this case  phone companies because people have decided to sign up for cellular service in which it is a necessity of the service that your phone communicate with the tower any business record is generated people who dial phone numbers on calls know that they're being routed through a cell phone or a landline provider those records can be made available to the government they can be made available for quite extensive periods of time i think in many ways it's far more revealing to know who a person is calling than to know the generalized cell sector where their phone is located the cell site information doesn't tell you the person was with the phone in a situation what do you do with the survey mentioned by your opposing coll that says that most americans i still think want to avoid big brother they want to avoid the concept that governments will be able to see and locate you me where you will at any point in time is it do you really believe that people expect that the government will be able to do that without probable cause and i don't the constitution protects the rights of people to be secured isn't that a fundamental concept don't you think that that would include the government searching for information about your location every second of the day so in one sense like most presidents sort of my are that involving rapidly changing technology and privacy expectations that are being measured here by surveys the proper body to address that is congress and congress has been active in this area this is not an instance of political fouling the question is was it that the fact the congress recognize how sensitive this information is is quite laudatory but did it understands the measure of the constitutional requirement of what protections should be given to that i can defer congress's understanding of the privacy but does that create an obligation for me to defer to their judgment of what protections the constitution requires constitution has always said government can't intrude except in some carefully defined situations special needs being foremost among them can't intrude on those privacy interests without we're not saying they can't ever they've just got to have articulable facts based on reliable information sworn to in an affidavit that can provide probable cause to believe that this individual is involved in criminal activity that's not a new standard that's an old standard but the new standard here would be saying that the business records of a third party when acquired by the government constitute a certain we have we have said you know we have made exceptions all the time ferguson baan even creating smith and miller we created an exception people disclose the content of telephone poles to third parties but we said the government can't intrude without a warrant in that situation i think there was a well developed framework at the time of smith and miller and that the court applied to smith and miller and it basically says in our society if you communicate information to a third person the public has an interest in that person's witnessing of what they heard or what they said and it can acquire it through means short of a warrant that was the basic framework that led the court in cats to conclude that what you maintain private in your house reminded us really is that the property based approach to privacy also has to be considered not just a reasonable expectation approach so if we put aside the reasonable expectation approach for just a moment katz miller smith and ask what is the property rights here let's say there is a property right let's say i have a property right in the conversion case i posited with your colleague so that if someone were to steal my location information from t mobile i'd have a conversion claim for example against them for the economic value that was stolen wouldn't that therefore be a search of my paper or fact under the property based approach of proving reminded us know you don't like i got that but let's say that in fact i've got positive law that indicates it is a property right would you there therefore agree that that's a search by paper in effect i wouldn't and why i'm asking to stick with my hypothetical justice course such i think that the problem with the hypothetical is that it creates a property interest out of transfers of misleading please could you stick with my hypothetical and then you can tell me why it's will or under my hypothetical you have a property right in this information would it be a search of my paper in effect yes or no i am not sure and the reason that i am not sure is there has never been a property right recognized in information that's conveyed to a business of this character if we were talking about email as your honour's opinion in ackerman sought to analogize to property i think we would have a more complex discussion about it i'm not sure that it would achieve any different result you're not here to deny that there might be a property interest in there no i am i'm here to deny there's a property interest in cell site information about my hypothetical if there were a property interest you're not here to put up your search my paper effect i'm not here to concede it either and the reason that the reason that i can't conceive it is it's a property right that resembles a no property right that's exist mr green i think you on those lines i was trying to think of an example of the situation in which a person would have a property right in information that the person doesn't ask a third party to create the person can't force the third party to create it work to gather it the person can't prevent the company from gathering it the person can't force the company to destroy it the person can't prevent the company from destroying it and according to petitioner the customer doesn't even have a right to get the information so just leave all those who are a lot of good reasons on why this should not be recognized as a property interest i can think of anything that would be characterized as a property interest with those traits and it would be a really a watershed change in the law to treat transferred information as property what the section two twenty two do other than it's clear this customer proprietary network information so that a carrier can disclose it does that in conjunction with a provision that it shall be disclosed as required by law so let me ask you that so so the government can acknowledge a property right but then strip it of any fourth  amendment protection and say is that the government's position though we also see maybe that they also get this property rights subject to having a non article three judge decide the case or quartering of troops in your home could be strip your property interests of all constitutional protection well those are pretty far afield i think what's going on are the here is that congress has set up a regime to protect privacy interests in the information i think this is also an illustration of why this court does not have to leap ahead with the fourth amendment to constitutional eyes interests and property and congress has calibrated under what circumstances that private privacy interest shall be protected it yields in the face of legal statutes that congress has also passed that this congress is determination also yield in the face of the fourth amendment it does not it does not the fourth amendment is trumped by the statute but what interests then the government who are in the government's view is that was ever the statute trumps the fourth amendment i think i said the opposite oh good all right i was also right that we're on common ground that so the fourth amendment controls not not what the statute says well respect to the disclosure of the information the fourth amendment applies once the court has identified what interests the statute create a statute creates customer proprietary information well you can to twenty two in the fourth amendment determine when it can be revealed right no the statute the statue control the constitution i think you are saying the states who controls the constitution no i think that the interests that the statute creates have to be looked at as a whole and this court has been very careful to just bitter bitter with the sweet yeah i know the court has rejected that in the due process context but here we are looking at what interests congress has sought to swipe my card like a new congress also so you don't get an article three judge to determine this issue that seems so  germane to what congress was trying to do in section twenty twenty two what congress was trying to do is to say look the the companies are collecting a large amount of information we recognize that there are privacy interests in this we want to give recognition to those privacy interests we do not want to hamper legitimate law enforcement so you know mr president i would read the phrase customer proprietary information to mean that it is proprietary to the cell phone company and therefore not to the customer it's customer information but it's proprietary information about the cell phone company because if you got that information in the aggregate you could tell a lot about the company's operation i assume that that  kind of information would be available to the f c c and so if the f c c obtained it they would have to treat it as proprietary information of the company just a little long in that i did not sure that that is the way that congress intended it but i think that what is significant is not the label but what actual underlying rights were created well if it were proprietary to the customer in what sense is that proprietary to the customer since it has all of those i attribute that i mentioned that's precisely my point as a label to indicate that congress wanted to show some respect for privacy interests when people interact with telecommunications companies it provided certain non disclosure wills it also made clear that it did government say to telecommunications providers you cannot use this kind of information you can't keep  yes i'm sure that in regulating the telephone companies or so what's odd difference between that and say if you want to create this information you are taking this information from customers and it's the customer's information you can't disclose it without the customer say yea or nay cause that's what congress did know because congress provided that it shall be disclosed as required by law and the same congress and we then you're begging the question which use just discourse issues question which is what's the what does the law of the fourth amendment requires in those circumstances so this court has here you're saying congress can set the level of what the constitution requires but i don't know that that's true well i think it's definitely not true this court is the arbiter of the fourth amendment but it has already information when congress says its customer information congress can say a lot of things and i think that the important thing that this court has said as a corollary to my point about what the third party doctrine is is the court has made clear that state laws that provide additional enhanced privacy protection do not alter fourth amendment baselines it said that in greenwood it said that in war it said it most recently in kwan word confronted a claim that the stored communications act the same law that's at issue here created some sort of an expectation of privacy above and beyond what the fourth amendment required and the court said we don't measure fourth amendment walls about privacy expectations in text messaging by what congress has provided in the context of the stored communications act and i think it is a fact illustrates that congress has efforts to provide enhanced protection above and beyond what the fourth amendment moment third party information is third party with a few exceptions but it may be that here another exception should exist for the reason that the technology since the time those cases has changed dramatically to the point where you get the cell phone information the tower information and put it together in a way that tracks a person's movement for two hundred seventy four days or whatever is an unreasonable thing for the government to do assume that so you know one thing that is bothering me about that line is what i said before it's quite frequent or at least not abnormal for the government when faced with reason to believe that their securities violations white collar crime violations terrorism financing violations all kinds of things like that that they do go to banks track a person's physical which is like his body you know where it is and the technology has changed dramatically there so maybe it's an unfair question to ask you about how would you draw that line because that's the problem  going to drive like how are you so as i do not think that i don't think it can be drawn coherently well why not just say what he said on the other side say what's wrong with up what we say is look what we have here is many many days of the government taking previously unavailable to our information at the time of the millers the trip now putting it together in order to track where this human being has been for a long period of time something that never could have been gotten before and to do that without some probable cause is an unreasonable thing what's wrong with that as an exception wedeln lid on to the basic rule it doesn't have a coherent principal that will explain why a similar rules shouldn't be applied to credit card records or debit card records or records of one's travel through or through a myriad of other kinds of digital records that are create maybe it does have the principle maybe the principle is that look at the exception they've made for diagnostic hospital records that is an exception and it has to do with physical bodies and it has to do with the private information related to those physical bodies and here if in fact there are similar things in similar circumstances of highly private information you draw you know several or you draw several factors there and  it over here if you have the similar thing all those factors are met in these other cases so be it so just as prior there is a significant difference between the kinds of cases you're talking about involving direct governmental searching activity and governmental acquisition of information from businesses the government is not monitoring the movements of this person by attaching a device to their person or by surveilling them an issue that i think itself raises difficult questions since it does not appear the petitioner objects to tailing somebody in multiple cars even over one hundred twenty seven days what we're talking about here is the distinction between the government going and getting information from an individual and the government going to a business and asking the business to serve as a witness and i think your honour's point about how investigations proceed is exactly right what the government does at the early stages of an investigation is reaching out to third parties because it may not have enough information about whether a crime has been committed or whether a particular individual's culpable for that crime it goes to third party providers who have information that allows them to narrow the field to find out what is going there if there's a shooting into a house someone's kill and witnesses say the shooter would run away with a cell phone and the police asked the company to release the information about so phones in that area you don't have to go to  get a twenty three d order now we do have to get a twenty seven zero three d order and in fact we use that if you do even for yes a blanket search well fort i think what just a sort of my aura described earlier is getting tower information we used exactly that technique when a bullet was fired through the window of a federal judge in florida and the government did not have a clear idea of who the suspects would be it attempted to narrow down the field by figuring out who did meet in order yes we did need an order and we got an order and i think this is another answer to your concern just as prior not only are we going to less sensitive sources of information at the early stages of an investigation to gather information and figure out what the criminal activity is and who might be incorporated in it but we also are operating under a statutory regime that requires us to make a particularize showing it's not the case that we can just walk in  treatment that could go away tomorrow the question here is the constitutional question not the statutory one so can i take you back to what it seems to me is the essential identity between the factual circumstances here and  that the government is getting twenty four seven information i mean in some ways you could say this is more jones was just about a car this is about every place that you are whether you're in a car or not and you said to me that what makes a difference is that you've given the information to another person and i recall that when you were here in the jones case your theory for why that was permissible was essentially that you had given that information to the entire public another words just by being in the world everybody sees you everybody watches you and you've lost your expectation of privacy in that way now we pretty conclusively rejected that argument why is it different when it's giving that to one person the same information this twenty four seven tracking than we said it was when you give it to the entire world so i think that it is fundamentally different in the means that we chose to employee in jones versus this case and it's also different in what information we're requiring we did not acquire in this case twenty four seven tracking of the precise movements of an individual everywhere he went we acquired information of the started let's assume you could let's assume mr wessler is right that the technology keeps on getting better and better more and more precise it's not ten football fields anymore it's half of this court room next month it may be an eighth of this court room you know so let's assume that we're looking ahead just a little bit and it's pretty precision targeting so i would say that the third party doctrine doesn't change i also think that this court could disagree and draw a information that involves twenty four seven tracking this information is just simply far more similar to what's was going on in the smith case where we got dialed phone numbers that would reveal a much more precise location where the dialed phone number came from and the person that was being spoken to this case does not present the court with the opportunity to decide the kind of granularity that petition may happen in the future and if it does happen it would it be permissible for the government to ask a cell phone company for a life time information not under the current statutory regime and in your view of the constitution i think it would be highly questionable under the constitution and here's why providers which are hardly shy about asserting fourth amendment rights have protections against unduly broad subpoenas that this court has recognized in a line of cases summed up in donovan versus steere and summarized in our in our brief there has to be a show where is the line there has to be a showing of relevance there has to be showing of congressional authorization there has to be a showing of specificity and it cannot be  burdensome so those protections are available in the magistrate's decision whether to issue the warrant right i mean you can yes but but if we have to demand this information somehow if we assume that the statute went away which for reasons that i would like to come back to i think the court could decide the case based on the statutes compliance with the constitution even if you assume that there is a privacy interest at stake but if there's no statute and we're going just under a subpoena there is a longstanding recognition in this court's cases that unduly broad subpoenas are subject to being squashed aquash under a fourth amendment principles and the principles that are considered in that context are raised by the provider they can include the sensitivity of the information this court in footnote six of the miller decision expressly said look we understand there's a lot of sensitive banking information that's going on here there are other protections besides abolishing the third party doctrine they include the first amendment and they include objections to the over breath of a request so in response to your question could the government just walk in with a subpoena and get a lifetime of this information no i don't think that we could and i do not think that we would we are still limited by basic fourth amendment principles that apply even to subpoenas where there is not additional statutory protection i don't know mr dreamin of order to understand the issue here and to see the difference between this case and jones isn't necessary to go back to old supreme court cases that describe that explain how the fourth amendment applies to a subpoena asking another asking a party or ordering a party to produce documents is not a search in the literal sense of the word nor use of this seizure in the literal sense of the word but cases going back to boyd and hell versus hankel old cases say that it's it's a constructive search but in the situation where there's this constructive search the the fourth amendment standards that apply to a literal search what the court called an actual search are different isn't that so it's a fundamentally different framework it is a completely different framework because of both a lesser degree of intrusion because the government is not going in itself and conducting search activity and because there's an opportunity for print compliance judicial review you've got the answer  right there you say how do we distinguish this case from all the cases where you want to get the commercial information in respect to the commercial information banking and you know all the things for white collar crime it's commercial information and you have the subpoenas and you could perhaps have the protections there the you were talking about here but this is highly personal information on a line you say it's somewhat closer to  the diagnostic testing than it is to purely commercial information now i could imagine writing a paragraph like that and saying leaving the other for the future does that work no it does it now i know you say no but i  let the basic principle here in the fourth amendment is how the government acquires information matters not the sensitivity of the information i have to disagree just as prior that medical information is given heightened protection under the fourth government hospital personnel that acquired the r and for law enforcement purposes that's the government search i think this also answers justice sotomayor as question about acquiring g p s information under you nine one one from a handset the government reaches into the phone pulls out information that i would concede is a search what we're doing here is not going to the individual extracting information from him we're getting information from a third party provider relying on the line of cases that justice alito alluded to that allow us to but said mr greve in that line of cases was developed in a period in which third parties to not have this kind of information not as kind specifically justice kagan but in the dissenting opinion in smith justice stewart warned that you're getting incredibly intimate information when you get that phone numbers of people who you have called and i would submit that if the court thinks about it the information you get if you know who you are calling in the inferences you can draw about what kinds of conversations people are having are extremely sensitive with that if i understand what you're saying you're basically saying well because the government is going to a third party here and doing it by it doesn't matter how sensitive the information is it doesn't matter whether there's really a lack of voluntariness on the individual's part in terms of conveying that information to the third party and we could go on and we could give you know other factors that you might think in a sensible world would matter to this question and you're saying that all of that is trumped by the fact that the government is doing this by subpoena rather than by setting up its own cell towers but i don't think i did say that just kagan because there is an element here of voluntariness in deciding to contract with the cell company just like there's an element of voluntariness in getting a landline phone and making calls and there's an element of voluntariness and signing up for a bank account and using a debit card to purchase everything in your life that sounds in can system with our decision riley though which emphasized that you really don't have a choice these days if you want to have a soul food well and not not in a practical sense i agree with you riley did point out that cell phones were necessities the descents in smith and miller pointed out that a private telephone has become a necessity a business and personal life and a bank account is a necessity of carrying out financial transactions  information through other means would be subject to a different fourth amendment analysis stream it seems like your whole argument boils down to if we get it from a third party we're ok regardless of property interests regardless of anything else but how does that fit with  the original understanding of the constitution and roots of assistance in john adams said one of the reasons for the war was the use by the government of the third parties to obtain information wanted to search for anything that they wanted isn't that exactly we're going to hear that so long as the third parties involved we can get anything we want well that i think the search is being carried out under a writ of assistance by a government agent operating under government authority whereas here we if there is a search in the acquisition of cell site information the it's the southside company that is acquiring that information without governmental instigation without the subpoena being though the equivalent of the writ of assistance i don't think a subpoena is an equivalent o rid of assistance allow the agent to go into any house to rip open anything look out for contraband and you don't subpoena anything that any company has anywhere in the globe regardless of any property rights regardless of any privacy interests simply because it's a third party so i think that as justice alito was explaining there is a traditional understanding that dates back to the time of the founding that subpoenas stand on a different footing from search warrants and they do that because they are less intrusive since they do not require the government going into private property and searching itself why does and why does that make a difference the subpoena tells the person who gets it this is what you have to do well i think i do know that less intrusive the whole question is whether the information is excessive will the government so i think most basically it makes a difference because the courts cases have said so from time immemorial and the reason why it is said so is that if i go into your house to search i will expose a great deal of additional information to government view beyond what is sought by the terms of an authorization and so if i could just complete yes or the difference here is that the government is operating under court supervision within order that provides particular  provides the interim position of a neutral magistrate between the government and the acquisition of information and it does require a showing that is less than probable cause but is above what a traditional subpoena requires so even if the court does think that there is a search  to begin on that subpoena point justice alito to to your question about the historical pedigree of the subpoena dr and i think this court made absolutely clear in riley that the historical pedigree of older for the moment doctor and does not automatically determine the outcome in the you want to us this is this would be revolutionary to fundamentally change their understanding of the application to the fourth amendment subpoenas do you want to do that well i don't think it's revolutionary at all and i think the reason  that is the government can concession is a here at that the contents of electronic communication should be protected once we recognize that there is an exception for the contents of e mails we've already acknowledged at the subpoena doctrine can't stand in its most severe form and if if the content of the e mails are to be protected it's not because they're sealed in transit as just one of my or you pointed out there are unlike in a fundamental way the paper letters that issue an eight hundred seventy seven an ex parte jackson they are actually accessible to and accessed by the surf writers as the government has argued in other cases including the microsoft case to be heard later this this term so if they're to be protected it's because of their sensitivity and because of people's longstanding expectation that their communications are highly sensitive and one would remain private and as the concurrence at least recognizing jones also highly private and sensitive are these kinds of longer term location records second i just want to highlight that the the government of mr even as i heard him conceded that the precision of these records doesn't matter at all to the government's theory here they could be precise i take it to within a single inch and the fact that a third party has custody of them would in the pause and wait for congress to act my colleague intimated that in an area of rapidly changing technology it's appropriate to perhaps abstain and that congress step in we are well over two decades into the cell phone age this is an area where as that the court recognized and riley people's use of this technology is well settled and only becoming more pervasive over time we know the direction the cases before the court now and it is crucial that the court act and finally to the  property principles first one statutory point justice alito section two twenty two c two actually does give the customer the right to obtain the information now as we pointed out in our brief the carriers have not reliably complied with that at least as of several years ago i understand that but you said in your brief cut that the companies would comply that i don't know what the state of play is today as of a few years ago the last time i have information they were not complying but but  under fourth amendment property principles and property law more generally it's of course quite common for a property right to be divided between different different parties for the bundle of sticks to be split up and here people have a right to exclude and a right to the term in use of the data secured by the telecommunications act certainly we acknowledge that the provider itself has some property right maybe several of those sticks in the bundle of but that doesn't eliminate some right on the  if if a search is conducted in reliance on a statute authorizing the search in accordance with certain procedure exclusionary rule doesn't apply may answer thank you   the court order this is unlike a warrant and all of this court cases on the good faith exception have dealt with warrants based on affidavits from an investigating officer this is an unsworn application from a prosecutor who we think should know better thank you thank you counsel decreases submitted