Supreme Court’s new term: Surveillance, hacking, sports betting—and cake, too

The Supreme Court's 2017-2018 term begins today, and there are plenty of high-interest cases for Ars readers that are already on the docket or currently pending with the justices. The issues at hand range from surveillance, freedom of religion, and the definition of hacking to what constitutes an online threat and whether a federal law that bans sports wagering in most states—online and off—infringes on states rights.

One of the cases in particular is perhaps the biggest privacy case to have reached the court in the Digital Age. Carpenter vs. United States asks a far-reaching question: do the authorities need a probable-cause court warrant to access people's mobile phone location history? Warrantless mobile phone tracking has become a mainstay of the American surveillance state following the high court's 2012 ruling that warrants were needed for the authorities to place GPS trackers on vehicles.

And beyond the case content, the 2017-2018 term is also notable because the court is again back at full strength with nine justices. The Trump administration nominated judge Neil Gorsuch at the start of this year to fill the seat vacated after the death of Justice Antonin Scalia in February 2016. The Senate confirmed Gorsuch in April. While his prior decisions and opinions may provide a hint at where the new justice stands on issues before the court, such as privacy and online speech, this will be Gorsuch's first full term at the court.

So at the start of this new term, and new era for the court, these are the cases we'll be watching closest.

Third-party doctrine

Credit: Justin Sullivan/Getty Images

Before you can understand the complexities of Carpenter, the case noted above, you need to understand the basics of how cell-site location tracking has worked in practice. To start, it takes advantage of a device—the mobile phone—that almost everybody keeps with them at all times. And because of a quirky interpretation of the law, US authorities have been obtaining data pinpointing the cell towers that a person's mobile phone pinged without a warrant. No Fourth Amendment, probable-cause standard that a person might have committed a crime has been necessary to access such information, and this data has consequently been used as evidence in court. In Carpenter, for instance, authorities got 127 days of cell-site information that included 12,898 location points.

Carpenter (PDF) revolves around a Detroit robbery investigation. Timothy Carpenter was one of two men convicted of aiding and abetting a string of robberies. Cell-site data placed the men near the robberies of Radio Shack and T-Mobile stores in and around Detroit.

A federal appeals court dismissed the men's contention that a probable-cause warrant under the Fourth Amendment was needed by the authorities to access their cell-site location data. The appeals court said (PDF) that the only requirement necessary for the cops to get the data was that they had to have asserted that the information was "relevant and material to an ongoing criminal investigation." And that's what investigators did. They told a judge they needed the information as part of their robbery investigation.

The Cincinnati-based 6th US Circuit Court of Appeals noted in its ruling that if Congress thought Americans should enjoy a privacy interest in their third-party data, Congress is free to legislate it. Legislation toward that end was introduced in February, but it went nowhere in Congress.

Currently, the so-called third-party doctrine is what allows these intrusions into private data. (The third-party doctrine was famously the government's legal basis for the telephone metadata snooping program unearthed by Edward Snowden.) The doctrine, upheld for decades by the Supreme Court, gives the OK for the government to demand that companies hand over private information on people if that information is considered an everyday business record. Because cell-site data is deemed a business record of the mobile phone companies, the telcos are required to disclose it as part of government investigations. Again, probable cause warrants are not required.

Given the privacy ramifications, a high-profile group of tech companies (including Apple, Google, Microsoft, and others) collaborated on friend-of-the-court filings for the case in August. The group argues in favor of stronger legal protections for data generated by apps and digital devices, stating that the current state of the law—which distinguishes between "content" (which requires a warrant) and "non-content" (which does not)—"make[s] little sense in the context of digital technologies."

Now the third-party doctrine is squarely in front of Supreme Court. The issue was previously before the justices when they ruled in 2012 that GPS trackers required warrants, but the court skirted the third-party doctrine issue then. Instead, the majority ruled at the time that the act of police affixing a GPS device to a vehicle amounted to trespassing—so warrants were required.

In a concurring opinion in that GPS case, Justice Sonia Sotomayor suggested that the third-party doctrine was "ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks."

Everybody’s a winner

Raiders quarterback Derek Carr throws in the first quarter of play against the Washington Redskins at FedEx Field on September 24, 2017 in Landover, Maryland.

Credit: Patrick Smith/Getty Images

Another high-impact case the justices have agreed to decide this term concerns a 1992 federal law prohibiting the states—except for Oregon, Nevada, Montana, and Delaware—from allowing sports betting whether at a casino or online. If the justices set aside the Professional and Amateur Sports Protection Act (PASPA), gamblers could wager on their favorite teams right from their home computer—no need to log in to some overseas, shady online casino. The modern-day, at-home Sin City awaits the high court's decision.

Christie v. NCAA stems from the New Jersey governor's efforts to allow his state's casinos and racetracks to conduct sports betting—an initiative that began six years ago. Christie believed this would generate millions for New Jersey, but he soon became the target of a lawsuit from a collective of nearly every major sports league, the NFL, NBA, MLB, NHL and NCAA. The group argued that such a law would conflict with PASPA.

Sports Illustrated notes that the Justice Department soon joined the effort of these sports leagues. The courts initially sided with the leagues, and New Jersey appealed all the way to the Supreme Court.

I. Nelson Rose, one of the nation's leading gambling legal scholars, told Ars in an e-mail that if the justices ultimately side with New Jersey, gambling would expand exponentially across the globe.

"There would then be no reason for the federal government to interfere if states want to legalize any form of gambling," he said. "They should be able to make agreements with other states and even other nations for Internet gambling."

The legal defense that New Jersey is invoking centers on the 10th Amendment, which says that the "powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." This is code for "states rights." The PASPA prohibits states from authorizing "a lottery, sweepstakes, or other betting, gambling, or wagering scheme" based "on one or more competitive games in which amateur or professional athletes participate."

New Jersey told the Supreme Court that the lower courts' rulings on the matter are "in direct conflict with this Court's Tenth Amendment jurisprudence barring Congress from controlling how the States regulate private parties."

Alternatively, the leagues have claimed that PASPA was a valid and legitimate exercise of congressional authority.

"And although Congress has accommodated limited state interests in legalized gambling, it has not strayed from its view that sports gambling is particularly damaging. When Congress exempted state lotteries from federal criminal lottery laws in 1975, for instance, it excluded state-sponsored sports gambling from that exemption, making clear that federal laws would continue to apply to 'placing or accepting of bets or wagers on sporting events or contests' conducted by states," the leagues told the court.

Eat Cake

Engaged gay couple Dave Mullins, second from left, and Charlie Craig, left, were joined by a small group of supporters in Lakewood on Saturday, August 4, 2012 to protest and boycott the Masterpiece Cakeshop. The couple went to the cake shop the previous week, and the owner turned them away, saying he would not make them a rainbow-themed wedding cake.

Credit: Kathryn Scott Ostler/Getty Images

No Supreme Court term would be complete without a First Amendment fight, and the 2017-2018 term is no exception.

At issue is the First Amendment rights of a baker who refused, on religious grounds, to make a cake to celebrate a same-sex marriage. Colorado regulators said Jack Phillips, the owner of Masterpiece Cakeshop in Lakewood, Colorado, broke a state anti-discrimination law when he refused to bake a cake for the wedding reception of David Mullins and Charlie Craig.

The dispute in Masterpiece Cakeshop vs. Colorado Civil Rights Commission is interesting because it comes at a time when a Who's Who of tech giants like Apple and Google are exercising their First Amendment rights and legally discriminating against people by refusing to do business with them for ideological reasons.

The difference between the tech sector's actions and the baker's boils down to this: Mullins and Craig belong to a protected class of people under Colorado law. Juxtapose that with the extremist operator of white supremacist site The Daily Stormer. Andrew Anglin runs an extremist site and is not a member of a class of people who are protected from being discriminated against. Discrimination in most states is barred on the basis of race, color, religion and sexual orientation. That's why Google and a slew of other companies can legally refuse to provide hosting and other Internet services to The Daily Stormer, which seemingly is on a perpetual search for a permanent home on the Web.

That said, the baker Phillips claims that he also deserves the right of free expression, and he maintains that he shouldn't be required to bake art that doesn't align with his views.

In his brief (PDF) to the high court's justices, the baker's attorneys said Colorado's law does not prohibit a baker from refusing a customer's request "to create a cake promoting white-supremacism for the Aryan Nation" or for "refusing to create cakes opposing same-sex marriage for a Christian patron." So the law shouldn't apply to Phillips, the attorneys argue.

Colorado initially ordered Phillips to "create custom wedding cakes celebrating same-sex marriages if he creates similar cakes for one-man-one-woman marriages." To comply, Phillips has stopped selling wedding cakes altogether. The baker's brief said Mullins and Craig could get a cake elsewhere.

"It is no answer to say that Mullins and Craig could shop somewhere else for their wedding cake, just as it was no answer in 1966 to say that African-American customers could eat at another restaurant," the couple's legal team wrote (PDF) the justices.

Pending certiorari

Credit: Dean Mouhtaropoulos/Getty Images

In addition to what's already on the docket, there are plenty of other interesting cases pending before the Supreme Court for the new term. In fact, many of the pending cases the court is being asked to put on its docket are more interesting than some of the ones already on it.

One case, if granted, is certain to become one of the biggest before the court this term since it would have big implications for data privacy and international relations.

That case, Microsoft v. United States, concerns whether the US tech sector must comply with court orders to supply data that is stored on overseas servers. In ruling against the US government, a federal appeals court last year sided with Microsoft on the issue, saying foreign servers were out of the reach of US warrants.

But legal uncertainty continues as the appellate ruling only applies to the states of Connecticut, New York, and Vermont. The Justice Department appealed in a bid to overturn the ruling, while Congress is attempting to produce legislation that would authorize the foreign reach of US warrants that would include reciprocity agreements with other like-minded countries.

"It is a critically important issue, but one that is better resolved by Congress than the court," Jennifer Daskal, a law professor at American University Washington College of Law, told Ars in an e-mail. "Ideally, the court passes, gives Congress time to update the statute with the kind of nuance that is needed, and the entire issue becomes moot. There are multiple other similar cases percolating in the lower courts, so the Supreme Court will almost certainly have other bites at the apple if Congress fails to act."

Rap lyrics, true threats

UPDATE: (The justices, without comment, declined Monday to review the rapper's appeal.)
Another issue pending the high court's consideration concerns the legal standard to determine whether a statement online amounts to an illegal threat or just a rant. The case of Anthony Elonis of Pennsylvania has ping-ponged across the courts for years. Now Elonis v. United States is asking the high court to overturn a conviction. Elonis was convicted of threatening to kill his estranged wife on Facebook via rap lyrics, which he said was entertainment protected by the First Amendment.

The issue boils down to defining standards—whether prosecutors must prove that an online threat is intended to be carried out, or whether a reasonable person (the target of the rant) would deem the online speech threatening. The defendant had testified that his 2010 Facebook posts were akin to a rapper taking out his anger with lyrics. Elonis has claimed that one of his Facebook posts was similar to the Eminem song, "I'm Back" from The Marshall Mathers LP. In that track, Eminem fantasizes about participating in the Columbine school shootings.

Here is one of the posts that earned Elonis a conviction:

That's it, I’ve had about enough

I'm checking out and making a name for myself

Enough elementary schools in a ten mile radius

to initiate the most heinous school shooting ever imagined

And hell hath no fury like a crazy man in a kindergarten class

The only question is . . . which one?

Elonis has already served his 44 months in prison and has been released. He's fighting the conviction anyway in a bid to clear his name. The lower courts concluded (PDF) that the legal standard to determine whether a threat amounted to an illegal "true threat" was how it was perceived, not whether there was any intention by the speaker to carry it out.

This is hacking?

Another case, Nosal vs. United States, is about whether somebody may be charged under federal hacking laws for illegally accessing a computer even though that person was handed the passcode from somebody who had lawful access to the computer.

In this case, the account holder who gave up the password to her work account at the Korn/Ferry International executive search firm was not authorized to give away her credentials. But once he acquired this information, defendant David Nosal used the proprietary data he accessed to build a competing executive search firm, prosecutors said.

The resulting hacking conviction against Nosal was viewed as a novel application of the Computer Fraud and Abuse Act. So his conviction, which bounced around the courts, is now on appeal to the Supreme Court.

The Electronic Frontier Foundation has urged the justices to reverse the San Francisco hacking conviction.

"This ruling threatens to turn millions of ordinary computer users into criminals," EFF Staff Attorney Jamie Williams said. “Innocuous conduct such as logging into a friend’s social media account or logging into a spouse’s bank account, with their permission but in violation of a corporate prohibition on password sharing, could result in a CFAA prosecution. This takes the CFAA far beyond the law’s original purpose of putting individuals who break into computers behind bars."

Shirts, social media, and suppression

In addition to the six cases outlined above, the Supreme Court has a number of smaller but still interesting cases that could come before the court this term.

• Minnesota Voters Alliance vs. Mansky may be of particular interest for the First Amendment fashion-conscious folks out there. In the pending case, the court is considering whether to take a case contesting a Minnesota law that bans all political apparel at polling places.

• UPDATE: (The justices, without comment, declined Monday to review the firefighter's appeal.) Another pending First Amendment case, Buker vs. Howard County, is being brought before the justices by a Maryland firefighter. Howard County Fire and Rescue Services Battalion Chief Kevin Patrick Buker was fired for, among other things, his Facebook "likes" and comments. Buker had followed orders and took down a Facebook post about killing liberals. He then took to Facebook to criticize the agency's social media policy. He "liked" a colleague's post of a woman flipping the bird at the department's policy and was eventually fired. Buker sued, arguing that he was retaliated against for exercising his free speech. The lower courts sided against him, and his high court appeal is pending.

• Another case the justices are being asked to consider, Dahda vs. United States, is one that asks whether evidence obtained from an authorized wiretap should be suppressed because the judge didn't have the authority to sanction a wiretap outside her territorial jurisdiction.

Gavel slams

It's cliché to say that the law never keeps up with the advancement of technology, but we're going to say it anyway. Even still, this new Supreme Court term gives the justices an opportunity to move the needle ever so slightly to begin shoring up that gap. The court has a chance to re-define hacking, the third-party doctrine, privacy, and the reaches of First Amendment online speech, among other things.

Rest assured that Ars will keep you up to date on the cases we've described here. We'll report if others of interest begin to develop, too. Possibly big changes for the online world lie ahead in the coming year, and it all starts at 10am ET with that traditional opening chant:

"Oyez! Oyez!  Oyez!... God save the United States and this Honorable Court!"