Oral Arguments Review: Week of November 27

On Wednesday, the Court heard oral arguments in one of the most controversial cases of this term: Carpenter v. U.S. In Carpenter, the justices heard arguments on a Fourth Amendment issue asking whether people have a reasonable expectation of privacy when they relinquish specific information to a third party. In this case, the information is metadata about someone’s location generated when he uses his cellphone. In an unusual turn of events, oral argument on Carpenter lasted 20 minutes longer than the usual hour per argument session. By the end of the rancorous session, there was little consensuses on where a majority of the justices stood on how they would extend the government’s ability to acquire such records.

Timothy Ivory Carpenter was convicted for his participation in a number of robberies over a period of several months in the Detroit area. The government used data collected through his cell phone usage in proximity to cell towers—obtaining it without a warrant through Carpenter’s cellular provider—as evidence to convict him. Carpenter argues that the means by which the government acquired those records was a violation of his Fourth Amendment right against unreasonable searches and seizures.

Several justices, including Justice Alito, inquired about how to approach the issue stating, “[t]his new technology is raising very serious privacy concerns.” Justice Sotomayor equated the government using phone records to track an American’s location to “Big Brother,” and commented that many people, including youth, are attached to their phones, like an extra appendage. Justice Roberts made a point regarding the nature of cellphone usage in the modern age and how difficult it is to conceive that most voluntarily elect to relinquish data on their location.

Two of the Court’s Fourth Amendment precedents figured prominently in the argument. In Smith v. Maryland, the Court decided that people do not have a reasonable expectation of privacy when dialing a number using a landline, although they do have such an expectation in the contents of the call. And in U.S. v. Miller, the Court held that there is no reasonable expectation of privacy when the government subpoenas a bank for an individual’s financial records because those records contain information that the individual voluntarily disclosed to a third party and that the third party retained for its own business reasons. But the Court also has recently decided two cases involving new technology and the Fourth Amendment: Riley v. California, which held that the police cannot search the contents of an arrestee’s phone without a warrant, despite the analogy to a wallet, which they can search; and United State v. Jones, which held that installing a GPS device on a vehicle was a search within the meaning of the Fourth Amendment.

Although many Justices appeared concerned about the privacy interests at stake in Carpenter, they did not appear to have settled on a single approach to this question of new technology and the Fourth Amendment. As The Daily Caller’s Kevin Daley stated, “[t]hough a majority of the Court appeared willing to extend protections to a user’s location data, the justices fractured as to how meaningful those protections might be, as well as the legal rationale on which they should rely.” Dahlia Lithwick of Slate also reports on the argument, including on Justice Gorsuch’s property-based theory about why the Fourth Amendment should apply to the location data.

The Court also heard oral arguments in Cyan Inc. v. Beaver City Employees Retirement Fund, which addresses whether state courts lack subject matter jurisdiction over covered class actions regarding the 1933 Securities Act. The petitioner argues that the law bars concurrent jurisdiction over all “covered class actions,” and the respondent argues that it bars “mixed” state- and-federal law actions. The Justices exhibited some frustration at the way Congress wrote the law. Justices Alito and Gorsuch, for example, called the statutory language “gibberish,” while Justice Ginsburg called it “obtuse.” The argument also featured two particularly experienced Supreme Court advocates. Neal Katyal, who was Acting Solicitor General under President Obama, represented the petitioners in his 35th Supreme Court argument, breaking the record set by Thurgood Marshall for the most oral arguments presented by a lawyer of color. And Tom Goldstein, publisher of Scotusblog.com, argued for respondents.

On Tuesday, the Court also heard oral arguments in Digital Realty Trust v. Somers, a financial whistleblowing case within the purview of an anti-retaliation provision in the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010. Paul Somers, an ex-employee of Digital Realty Trust (DRT), a real estate investment trust, told upper-management that his direct supervisor had eliminated internal controls of certain operations in violation of the Sarbanes-Oxley Act of 2002. That Act has a statute of limitations of just 180 days, so after several months Somers filed a suit against his former employer under the Dodd-Frank Act for disclosing the information. DRT argues that the law only protects whistleblowers who report wrongdoing to the Securities and Exchange Commission (SEC); not those who report wrongdoing internally.

Finally, the Court heard oral arguments in two intellectual property cases. In Oil States Energy Services v. Greene’s Energy Group, the petitioner, Oil States, argues that Congress violated Article III of the Constitution and the Seventh Amendment when it authorized the Patent and Trademark Office to invalidate their patent, on behalf of Greene’s Energy, without a jury trial. In the other patent case, SAS Institute Inc. v. Matal, the Court heard arguments on whether the Patent Trial and Appellate Board is required to issue final written decisions on patentability to all petitions involved, or if the Board may grant a written decision to only some petitions.

This post was drafted by ISCOTUS Fellow Michael Halpin, Chicago-Kent Class of 2020, edited by ISCOTUS Editorial Coordinator, Anna Jirschele, Chicago-Kent Class of 2018, and overseen by ISCOTUS Co-Director and Chicago-Kent faculty member Carolyn Shapiro.

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