At issue in this case the collection of this information is a search as it disturbs peoples longstanding practical expectations that their longterm movements in public and private spaces will remain private. What is the rule you want us to adopt in this case, assuming we keep a miller, miller and smith versus maryland on the book. The rule we seek is longerterm aggregations of cell phone location and information is a search and requires a warrant. We are not asking the court to overturn those cases. We think the lesson to be john to be drawn is that any extension of predigital precedents to these kinds of digital data must rest on their own. How would you distinguish miller . Involves more limited records. They can reveal more sensitive information. As this court held, they were voluntarily conveyed in that they were created by the passing of instruments in the stream of commerce to transfer funds. What we have here is more sensitive and less voluntary. Why is it more sensitive . Why is cell site Location Information more sensitive than bank records, which particularly today, when a lot of people do not use cash much, a bank record will disclose purchases, it will not only disclose everything the person buys, it will not only disclose locations, it will disclose things that can be very sensitive. Justiceolutely agree alito, at the information can be sensitive. What it does not do is provide a minute to minute account of the persons location at every any given period. Why is that more sensitive than bank records whichs show periodicals to which a person subscribed or hotels where a person has stayed or entertainment establishments that a person has. Particularly because the information in the bank efforts in the bank records are not publicly known. Your whereabouts are publicly known. People can see you, surveillance officers can follow you. It seems to me this is much less private than the cases Justice Alito is discussing. I do not agree. When a person is engaged in a financial transaction, that is an interpersonal transaction where a person has full knowledge theyre putting something in the stream of commerce. As the five concurring justices made clear in jones, although we may have a reasonable expectation that someone may see where we go in the short period, no one has expected in a free society that our longerterm locations will be aggregated and tracked in the way they can be here. You keep emphasizing longer term. Suppose what was thought here was that information for the day of the robbery. Just one day, the day of each robbery. Does that qualify as shortterm in your view and that would not violate the Fourth Amendment . The rule we proposed would be a single contiguous 24hour period. In which where you talk about, what rule . We do not think the court we do not think the court needs to draw a bright line here. As we pointed out in our reply brief Justice Ginsburg is not asking you about 24 hours or anything else, she is asking you about a power gap. A crime happens at a bank. The teller says or does not say that she saw the robber on the phone at some point. Could the police just get a tower dump to see who was in that area at that time . Justice sotomayor, yes, i think that would not be affected by this case. That would be shortterm. What is the difference between a tower dump and targeting a particular individual, lets say an anonymous call came in that said john doe was the robber. Could the police then say to the Telephone Company, let me see the records of john doe for that hour or for that day or whatever the duration of the crime was . Yes. That would be perfectly acceptable. We go back to my question. You said 24 hours, roughly. If there only one robbery, we could get that information. Now there are how many . Eight . We cannot get it for eight, but we can get it for the one . We suggested 24 hours. The most questionable line if most administrable line the court wants to draw a line would be a 24hour period. The court could draft other reasonable ways. Is it was reasonable for one robbery, one day. If it was reasonable for one robbery, one day. Why would it not be equally reasonable for another robbery . The risk is the risk of circumvention of this courts rule from jones. Some types of crimes would be quite easy to delineate a limited set of days that information might be worth getting. Others would be more difficult. In this case, it does not matter where the court draws that line. The longerterm is more corroborative. Suppose he is in the area every day because of where he shops. It seems to me that the role you are proposing might be exculpatory information. We expect that if the government obtained a short period of data that appeared to be exculpatory, that would be probable cause to gather a warrant. Or in the pretrial process, the defendant could obtain other records from the carrier and use those as exculpatory evidence. The concern is with the privacy invasion, which is quite severe over the longterm over these more than four months of data. The basis for the 24hour exception seems to me, there is going to be protection extended to the information it has to involve some compromise of the thirdparty doctrine and if that is altered, i do not see why it would not also apply to one day of information. The only other court to address this question, the Supreme Court of massachusetts, drew the line at six hours. We have suggested 24 hours. It seems to me the line is between information to which the authorities have access and information to which they dont. I dont know why we are bothering about a line between six hours, three weeks. We would be perfectly happy with this court requiring a warrant as a per se matter. What we are trying to advance is the suggestion to the court that takes into account the rationality and peoples reasonable expectations that although police could have gathered a limited set of locations traditionally by canvassing witnesses. Never has the government had this kind of time machine that allows them to aggregate along period of peoples movements. And another thing the government has never had is the ability to go back 24 hours and test everybody in the whole community or anybody who happened to be there. I do not know why that is a that isnt a consideration that cuts against preserving 24 hours two months ago. The government didnt have the capability of tracking a particular individual. They find out later that is the one they want. I do not understand the coherence of your argument on that. I think that a different concern would be raised by the tower jump situation Justice Sotomayor posited. That may involve concerns about a dragnet search sweeping in innocent people. That is not the same concern before the court here. Isnt that the same concern here . That is why i am differentiating between incidents related to searches and basically dragnet searches when you are looking at what a person is doing over 127, 30, 40, even 24 hours. It is not related to any legitimate police need to invade the privacy of a person over a 24 hour period unless there is a suggestion that the crime occurred during that entire 24hour period. That is why i asked you, is there a difference between saying if police have cause to believe a crime has been committed, can they asked for records related to that individual crime, even if it happens on one day or the second day or the fourth day or the 10th day, so long as they are limiting their search as related to a criminal activity as opposed to a dragnet suite of everybodys intimate details . Right now we are only talking about the cell site records. As i understand, a cell phone can be pinged in your bedroom. It can be pinged at your doctors office, it can ping you at the most intimate moments of your life, presumably even in a dressing room as you are undressing. I am not beyond the belief that someday a provider could turn on my cell phone and listen to my conversations. Im not sure where your 24hour rule comes from. Shouldnt it be based on incident related rather than that is the essence of your complaint, that we are permitting police to do a dragnet search of your life. Youre absolutely correct that in the seven years that have elapsed since data was gathered in this case, Network Technology has advanced. Today, not only is data gathered for phone calls but also text , automaticallyta checking new emails, social media messages and weather alerts. Today the government is able to obtain historical information. I agree that this new technology is raising serious privacy concerns, but i need to know how much of existing president you want us to overrule or declare obsolete. I would like to take you back to miller and ask on what grounds that can be distinguished. You dont say we should overrule it, and you say the information here is more sensitive. We maybe could agree to disagree about that. What else . On what other grounds can miller be distinguished . Identifiednd smith at least two factors to take into account in the expectation of privacy analysis. The record sensitivity and whether they are voluntarily conveyed. There is also a distinction on voluntary. Unlike a negotiable instrument in commerce or a phone number punched into a touchtone phone, people when they make or receive a phone call or text message and certainly when their phone is automatically making a data connection do not provide their Location Information to the carrier. That is a debatable point, whether people realize what is going on. There is reason to think they do. There were all these commercials, can you hear me now, our company has lots of towers everywhere, what do they think that is about . A standard metro pcs contract seems to say, i guess we do not have the actual contract in the record, but they seem to advise the customer that we can disclose this information to the government if we get a court order. I do not know whether that will hold up. Even if it were to hold up today, what would happen in the future if everybody began to realize this is provided, if you have enough police tv shows with shows were this is shown and they will know about it just like they know about csi information. Three points. In a scholars brief runs through the result of a survey that shows a Strong Majority of americans do not understand this information is acceptable to much less retained by the service providers. Second, i agree that the metro pcs contract in 2010 and the other companies privacy policies today do disclose the Location Information. I think the disclosures in those documents worked in our favor. I will explain why this is. I should caution the court that relying too heavily on those contractual documents would threaten to make a crazy quilt of the Fourth Amendment because constitutional protections on happenstance. Quite strongly promised people that their information will remain private without consent. Lastly except as provided by law. Another private person, not necessarily the government. Modes right. That is right. There is a provision to disclose as required by law. Those words need to be read in context and compliance with the constitution. If there is a reasonable expectation of privacy in these records than a warrant is required. Even looking at the statutory framework, the government points to the stored Communications Act as the law requiring disclosure. When congress amended that statute in 1994, it provided two mechanisms for access to records. An order, as used here, and a warrant. A person looking at that statute will be quite reasonable to assume the reason there is a warrant is to deal with records like these in which there is a strong privacy interest. Your argument, as i understood it from the brief and today, makes the stored Communications Act and the 2703d order irrelevant. You do not even talk about it. In an area where we are searching for a compromise, why shouldnt we give significant weight to congresss determination that there should be and will be some judicial supervision over these investigations . Justice kennedy, congress enacted the stored Communications Act in 1986 and amended it in 1994. Three tenths of 1 of americans had cell phones in 1986, only 9 in 1994. There were 18,000 cell towers in 1994. Today, over 300,000. You mean you act was more necessary when there were fewer cell phones . Not at all. My point is that congress was clearly not thinking about the existence of and certainly not lawenforcement interest in historical cell phone information. There is nothing in the record to indicate any cognizance of these kinds of records. My question you give zero weight in your arguments to the fact that there is some protection. We acknowledge fully 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 held by a thirdparty. Yet you said in your brief that in most of the cases, when you get one of these 2703 d orders, in my run of cases you said there was probably enough there to get a warrant. Lets say this very case a confessed robber identifies his collaborators and there are details about the collaborator. Why is not that enough to get a warrant . In this case it is quite possible that the government could have i do not know they stated probable cause on the face of the application. Mr. Carpenters name is mentioned only once. They had a cooperating witness at that point, a cooperating codefendant. I cannot say whether had they wanted to they could have made a probable cause, it is possible. I want to return, Justice Alito, to your question. It is important to remember that miller and smith were decided four decades ago. The court could not have imagined the technological landscape today. Accepting the governments limitations to radically extend those cases would put them beyond the Fourth Amendment. From the very beginning, smith, for example, basically said the disclosure at issue does not disclose the contents of the conversation. As the dissent pointed out, the provider had access to the contents of the conversation. Yet we drew a line in saying cell phone numbers telephone numbers are disclose will because Everybody Knows that the Telephone Company is keeping track of the numbers you get it in the phone bill at the end of each month. We said people do not know or even if they realize the phone company can listen into their conversation that there is a reasonable expectation that the phone company will not access an urgent circumstance on death or threat. That suggests, as you started to say earlier, that it never was an absolute rule, the thirdparty doctrine. We limited it when in ferguson when we said police cannot get your medical records without your consent, even though you have disclosed your medical records to doctors at a hospital. They cannot touch your bag to feel what is in your bag because an individual may disclose his or her bag to the public. One of my colleagues here said, why shouldnt people expect others to touch their bag as well . The court said no because you expose what your bag looks like but you wont have an expectation people would touch your bag. 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 dont expect them to track me down for 24 hours we agreed the content of electronic communication. In the digital age, content as a category is underinclusive and an administrable. I think thats one lesson from joan spread that was one lesson from jones. That was not the content of location, it was location overtime in public. We had some very highly sensitive digital records. A persons complete web browsing history showing everything we read online, medical information , fertility tracking data, a would be vulnerable. Suppose there was a subpoena for the numbers called from the cell phone . Would there be a problem with that . That would fall squarely within the rules of smith. It would certainly be more voluntary. I think less sensitive. Calledthink the numbers the people is less sensitive . How are we going to judge the sensitivity of information like this . The complaint opinions in already judge the sensitivity of this information. The court needs not address every other contexts. Supposed Law Enforcement follows the people . That would be worst than if they followed them for 24 hours . That would be a highly unlikely and ever. Suppose it happens, there can be very serious times when long for smit devotes a Law Enforcement devotes a tremendous amount of tax surveillance with multiple vehicles, multiple agents and it lasts for too long and it is invasion of privacy . That typically wont happen. We are going to talk about normal expectations. It seems to me this is a much more normal expectation that businesses have your cell phone data. I think almost Everybody Knows that. I dont think it is an expectation that people are following you for 127 days. That is my hypothetical. I agree but i am running out why using technology to me naturally possible for the rest is where might happen. Here, its more removed. Never could police have decided today to track me 24 hours a day, seven days a week, five months ago. That is a new power made possible by these perfect tracking devices that 95 of americans carry in their pockets. If i were to talk about you about the state of understanding. The government represents those pictures in its brief suggesting that the information that is cleaned from this is very general. It doesnt pinpoint exactly where you are. In order to make effective use of it, it has to be combined with many other pieces of information. Do you agree with that . What is your view of the relevance of the fact that information may not be useful in itself but it may be useful in combination with other information . Does that make a difference . We agree where the records come from, they were generally less precise in the gps data. We dont think that makes a difference for the Fourth Amendment rule. Jones, the data lacked rescission. It only tracked were a car went. If a person was in a parking lot, the gps data cant tell if they went to a Jewelry Store for a stick up, or a Medical Clinic for a checkup, or a cafe to meet a friend. Some other amount of inference is required. The same is true here. In seven years, the data has become more precise.