Home > FT > On the Docket’s Preview of the November Supreme Court Arguments

On the Docket’s Preview of the November Supreme Court Arguments

The Court starts out with a light schedule in the beginning of November, as two cases were removed from the November sitting: the much-anticipated Husted v. A. Philip Randolph Institute and Leidos, Inc. v. Indiana Public Retirement System. The Court will hear three arguments during the first half of November and five in late November. On the Docket will provide overviews of the latter cases closer to their argument dates.

The Court removed Husted in response to a letter from Demos Senior Counsel Stuart Naifeh requesting the Court postpone the arguments until January due to the unexpected medical leave of the counsel of record, Vice President for Legal Strategies Brenda Wright. Mr. Naifeh, after taking the next couple months to prepare, will be arguing in her stead in January. Husted is much-anticipated because of its potential impact on how states purge voter rolls. Petitioners challenge that Ohio’s process for purging voter rolls violates the National Voter Registration Act of 1993 by using nonvoting as the trigger. As NAACP Legal Defense Fund counsel Sherrilyn Ifill noted in GW Law’s Supreme Court panel, using nonvoting to trigger removal from a voter list takes away a citizen’s right to “vote with their feet,” i.e., to not vote because perhaps they don’t agree with either candidate or the process at large. Ms. Ifill also noted the large proportion of registered voters who were first-time voters in the Obama and Trump presidential elections. If Ohio’s purge process was the appropriate way to purge the rolls, many of those voters would not have been able to cast ballots, a clearly unacceptable result.

The Court also removed Leidos in response to the parties’ requests. Leidos and Indiana Public Retirement Systems asked the Court to place the case in abeyance while they negotiate the terms of a settlement agreement. The parties have reached an agreement in principle, but will notify the Court by May 2018 as to whether they have reached an official settlement. The dispute in Leidos centers around the duty to disclose to potential investors in § 10(b) of the Securities and Exchange Act of 1934. Under that provision, an omission in an investor document is fraudulent only if the omitted information is necessary to make an affirmative statement not misleading. The Second Circuit held that a company can be liable for fraud just for omitting information required by the Securities and Exchange Commission Item 303 in Regulation S-K, even if the disclosures are not necessary to make affirmative statements not misleading. Item 303 of Regulation S-K governs disclosure of management’s discussion and analysis of financial conditions and results of operations. The Second Circuit’s decision, as it recognized, is directly at odds with other circuits. On the Docket will wait until 2018 to see whether the parties reach a settlement.

What the Court will deal with, though, are three cases on three distinct issues: statutes of limitations, bankruptcy, and separation of powers. First, in Artis v. District of Columbia, the Court will look at the interpretation of 28 U.S.C. § 1367(d), which provides that the statute of limitations for a supplemental jurisdiction claim will be tolled while the claim is pending and for a period of 30 days after dismissal unless State law provides for longer. The precise term to be interpreted is “tolled”—whether it means suspended, as Ms. Artis argues, or barred, as the District argues. Second, in Merit Management Group, LP v. FTI Consulting, Inc., the Court will look at a safe harbor provision used in protection from avoidance claims in bankruptcy cases. Prior to going bankrupt in 2009, a “racino” (a combination horse track and casino) purchased all of the shares of its major competitor. The competitor’s shareholder received $16.5 million in the transaction. The trustee of the now-defunct racino argues that, as a creditor, it is entitled to the $16.5 million. The Court will have to decide how far the safe harbor provision goes. Does it apply only to financial institutions? Or does it apply when financial institutions are only the conduits of a transaction? Third, the Court will look at the separation of powers in Patchak v. Zinke. Students of Administrative Law will remember that Mr. Patchak’s suit revolved around land belonging to the Match-E-Be-Nash-She-Wish Band of the Pottawatomi Indians. Mr. Patchak previously challenged the Interior Department’s decision to put a piece of land into a Trust for the Tribe’s use. The Court then held that Mr. Patchak had prudential standing to challenge the Department’s decision and remanded the case. While on remand, Congress enacted a statute that essentially protected the land from all challenges, current and future. Thus, Mr. Patchak’s case was dismissed. The Court will hear arguments on whether Congress impeded the authority of the federal courts.

In other interesting news, the Court vacated and remanded the two travel ban cases: Trump v. Hawaii and Trump v. International Refugee Assistance Project. The cases were vacated and remanded with instructions to determine whether the issues are moot. The cases dealt only with the freeze on admission of persons from the six Muslim-majority countries identified in the Executive Order. That freeze expired after 120 days. President Trump issued a third Executive Order which is currently making its way through the court system and will likely be on the Justices’ certiorari dockets before long. But that discussion is for a later preview introduction. For now, the highlights below will provide you with all the information you need to keep up with the full-strength Court, and don’t forget to check back for the late-November argument previews.

November 1


Artis v. District of Columbia
No. 16-460; D.C.

A good candidate for future Legislation and Statutory Interpretation law school textbooks, Artis v. D.C. will force the Court to define the meaning of “tolled.” When Stephanie Artis filed her federal and state law claims in federal court, she hardly could have predicted this result. Ms. Artis filed various claims related to her termination as a Department of Health code inspector, including one federal discrimination claim under Title VII and numerous state law claims under the D.C. Whistleblower Act, D.C. False Claims Act, and for wrongful termination against public policy. Two and a half years after filing, the federal district court dismissed the Title VII claim and, as such, no longer had jurisdiction to decide the state law claims. By this time, the three-year statute of limitations on her state law claims had passed. Following the dismissal, Ms. Artis waited fifty-nine days to refile her state law claims in state court. Based on one reading of 28 U.S.C. § 1367(d), Ms. Artis was time-barred from refiling.

28 U.S.C. § 1367(d) provides that a “period of limitations for a supplemental jurisdiction claim shall be tolled while the claim is pending and for a period of 30 days after it is dismissed unless State law provides for a longer tolling period.” The question at issue is what “tolled” means under this statute. Two theories have emerged from the lower courts. First, the “suspension theory”—Ms. Artis’s theory—states that the state statute of limitations freezes on the day the federal suit is filed and unfreezes thirty days after the federal lawsuit is dismissed. Under this theory, Ms. Artis would have about two years to refile her lawsuit in state court, meaning she filed her suit well in time at fifty-nine days. Alternatively, the “grace-period theory” is much less forgiving, despite its name suggesting otherwise. Proponents of this theory read the statute as follows: if the state statute of limitations would have expired while the federal case was pending, a litigant has thirty days from the federal court’s dismissal to refile in state court. Under this theory, because Ms. Artis waited fifty-nine days to refile, it was too late.

The D.C. Court of Appeals embraced the grace-period theory in ruling that Ms. Artis’s state law claims were time-barred. Their opinion suggests that the court considered more than just the text, noting the policy argument that the grace-period theory is better for state and local governments. While the suspension theory can significantly extend the statute of limitations for state law claims, the grace-period theory would ensure that state and local governments would not have to spend crucial resources defending old claims. In arguing this theory, D.C. also notes that the definitions of “tolled” at the time Congress enacted the statute were “to bar, defeat, or annul.” Ms. Artis contests this definition, claiming the plain text is very clear, and that “toll” means “suspended,” meaning the statute of limitations would be suspended until the claim is dismissed. In Court, it might very well be the battle of the tolls.

November 6


Merit Management Group, LP v. FTI Consulting, Inc.
No. 16-784; 7th Cir.

Valley View Downs LP and Bedford Downs both operated casino and racetrack companies in Pennsylvania and competed against the other to obtain the last harness-racing license in the state. Ultimately, they joined forces: Valley View acquired all of Bedford’s shares in exchange for $55 million. The companies did this through an escrow agreement where Citizens Bank of Pennsylvania was the escrow agent. Merit Management, a shareholder in Bedford Downs, also placed its stock certificate into escrow with Citizens Bank. Merit Management received $16.5 million from this transaction. Unfortunately, Valley View then went bankrupt in 2009. FTI Consulting, Inc., the trustee of Valley View Downs LP, brought this suit against Merit Management, a 30% shareholder of Bedford Downs, claiming that they are entitled to the $16.5 million from Bedford’s transfer to Valley View and thus to Merit Management.

The question—whether the creditors (FTI Consulting) are entitled to the money in Merit Management’s hands—turns on the scope of a safe harbor offered in Section 546(e) of the Bankruptcy Code. The safe harbor was created to protect financial institutions performing securities transactions from having to disgorge payments initially made by a now-bankrupt company. Litigation over this safe harbor statute has greatly increased in recent years, particularly in efforts to avoid payments from failed brokerage firms and investment banks like Madoff and Lehman Brothers. These cases often involve high stakes litigation; after all, entities bringing these suits are frequently seeking to get money back from investors that might have distributed their money elsewhere by the time of suit.

A circuit split has emerged as to how broadly the courts should interpret these protections from avoidance actions. Three circuit courts have ruled that Congress only intended to protect market players, such as banks, brokers, clearinghouses, and high-volume traders. Five circuit courts have found that, in addition to these market players, Congress intended to also protect anyone receiving payments through those market players—including, in this case, Merit Management. In other words, this latter view claims the safe harbor also applies when financial institutions are acting as a “conduit” for a transaction.

The Seventh Circuit reached the conclusion that Merit Management was only a conduit for the deal and could not benefit from the safe harbor. Merit Management argues that the Seventh Circuit’s decision completely disregards the plain language of § 546(e)—particularly when it refers to transfers “by or to” financial institutions, as well as “or for the benefit of” financial institutions. The Seventh Circuit and FTI Consulting mostly rely on congressional intent but also argue that the the statutory language is ambiguous. Depending on the result, the Court might dramatically limit or extend who gets to benefit from this safe harbor statute.

November 7


Patchak v. Zinke
No. 16-498; D.C. Cir.

The Constitution assigns the power to decide cases to the judiciary, and the power to set the courts’ jurisdiction to Congress. Put another way, the courts may get to decide, but Congress gets to decide what they get to decide. The question in Patchak is at what point the latter power, assigned to Congress, impermissibly intrudes on the former power, which is reserved for the courts.

Patchak arises out a long-running dispute between David Patchak and the Match-E-Be-Nash-She-Wish Band of the Pottawatomi Indians, known as the Gun Lake Tribe. In 2008, Mr. Patchak challenged the Interior Department’s plan to put a plot of land outside of Grand Rapids, Mich. into trust so that the Tribe could build a casino. Mr. Patchak’s initial challenge to the Department’s action, brought under the Administrative Procedure Act (“APA”), reached the Supreme Court (Patchak I, 567 U.S. 209 (2012)). The Court held that Mr. Patchak had prudential standing under the APA and permitted the suit to proceed.

During the remand proceedings of Patchak I, Congress passed the Gun Lake Trust Land Reaffirmation Act, Pub. L. No. 113-179, 128 Stat. 1913, in 2014. Two provisions of the law are at issue in Patchak II. First, the Act ratified the Interior Secretary’s decision to take the property into trust. Second, the Act states that any litigation relating to the property “shall not be filed or maintained in a District Court and shall be promptly dismissed,” including actions pending at the time the law was enacted (i.e., Mr. Patchak’s suit), but did not amend any underlying substantive or procedural laws.

Mr. Patchak argues that the law violates the separation of powers. By mandating that the courts dismiss Mr. Patchak’s suit without changing the substantive or procedural laws underlying his cause of action, Mr. Patchak argues that Congress improperly exercised judicial power. The resulting law directed the outcome of pending litigation, Mr. Patchak argues, which the Court forbade in the seminal Reconstruction Era case United States v. Klein, 80 U.S. (13 Wall.) 128 (1871). Mr. Patchak distinguishes the Gun Lake Act from the statute the Court upheld against a separation of powers last term in Bank Markazi v. Peterson, 136 S. Ct. 1310 (2016). There, the Court determined Congress acted within its authority because the law simply provided new substantive standards for courts to apply.

In response, the government argues that the Act merely withdraws a category of subject-matter jurisdiction pursuant to Congress’s constitutional power to delimit the jurisdiction of the inferior federal courts. The Act does not present a Klein problem, the government argues, because it amounts to a substantive change in the law that changes federal court jurisdiction and withdraws the government’s waiver of sovereign immunity in the APA as to the contested property. In other words, the Act respects the separation of powers because Congress did not tell the courts how to resolve Mr. Patchak’s suit; it merely changed the jurisdiction of the federal courts in a way that left them with no choice but to dismiss it.

The Court’s decision could potentially be far-reaching. One commentator has noted that the case could have ramifications in administrative law, since agency interpretations of the law are also binding on the courts, through Chevron deference, and in administrative adjudications. See Andrew Hessick, Keeping an Eye on Patchak v. Zinke, Yale J. on Reg.: Notice and Comment (July 27, 2017), http://yalejreg.com/nc/keeping-an-eye-on-patchak-v-zinke/. With the scope of executive, legislative, and judicial power at stake, Patchak could be one of the most noteworthy cases to fly beneath the radar on the court’s docket this term.

November 27


Oil States Energy Services v. Greene’s Energy Group
No. 16-712; Fed. Cir.

On Monday, the Supreme Court will hear two different cases regarding the adjudication process of the Patent Trial and Appeal Board (“PTAB”). In 2012, as part of the America Invents Act, Congress created the PTAB within the United States Patent and Trademark Office. The PTAB offers parties the opportunity to challenge patents under inter partes review (“IPR”). IPR is an adjudicative process where the PTAB first decides whether the full patent will be reviewed, and if so, considers whether the claims are patentable or whether the patent should be invalidated on the ground that it is already in use in another patent.  The PTAB then issues a final decision on which claims are unpatentable and which claims are patentable. That decision may be appealed to the Federal Circuit. Oil States Energy Services argues that this new process allows a non-Article III forum without a jury to extinguish private property rights in violation of the Constitution.

Oil States manufactures a solution that protects wellhead equipment. The corrosive nature of hydraulic fracturing fluid combined with the high pressures at which it is pumped into a well can cause damage to the equipment used at the wellhead if the wellhead is continuously exposed to the fluid without some kind of protection. The patents at issue both provide a solution by using a protective tube that locks after it is inserted into the wellhead. By locking in the protective tube, there is an adequate seal even where the fluid pressure fluctuates. Thus, the wellhead and the pipe casing are protected from the abrasive fluid.

Oil States filed a patent infringement suit against Greene’s Energy Services in a Texas district court. The court found that Oil States’ patent was distinct from Greene’s patent. Greene’s sought IPR and the PTAB ended up invalidating Oil States’s patent on the grounds that it was “anticipated” by Greene’s patent application. Oil States moved to amend its patent to clarify the technical descriptions, but the PTAB denied the motion. Oil States appealed to the Federal Circuit, arguing that IPR violates Article III and the Seventh Amendment because the process extinguishes private property rights in a non-Article III forum and the forum proceeds without a jury.

Should the Court rule in favor of Oil States the result would invalidate the entire IPR process. This would bring back exactly what Congress was trying to avoid: the lengthy and costly patent infringement litigation that could disincentivize businesses from applying for new patents because of the fear of the adversarial process. Further, the government argues that IPR is not as abrupt a shift as Oil States makes it out to be and that patents have always been part of administrative procedure due to the fact that they are granted by an administrative agency. On the other hand, is Congress allowed to legislate around judicial authority just because it doesn’t like the process?

SAS Institute v. Matal
No. 16-969; Fed. Cir.

Patents are immensely important in society because they protect inventors from having ideas and processes stolen, which in turn “promote[s] the Progress of Science and useful Arts.” U.S. Const. art. 1 § 8, cl. 2. Because of this importance, there are often changes made to existing laws and procedures that attempt to further this protection. The Court’s second patent case also deal with the Patent Trial and Appeal Board (“PTAB”). The PTAB streamlines the patent challenge process and allows an individual to challenge the validity of an existing patent through a process known as inter partes review (“IPR”). IPR is an adjudicatory process where the PTAB first decides whether full review of the patent is warranted. If the PTAB decides that full review is necessary, the second step is for the PTAB to conduct that full review and issue a written decision. All PTAB decisions can be appealed to the United States Court of Appeals for the Federal Circuit, which is the only appellate court with jurisdiction to hear patent cases. While using the PTAB’s process is not the only way that a patent can be challenged, it has proven to be a popular method.

In 2006, ComplementSoft, LLC obtained U.S. Patent No. 7,110,936 (the “‘936 patent”). The ‘936 patent was for generating and maintaining source code that allows users to “develop, edit, and debug software for a particular programming language.” SAS Inst. Inc. v. ComplementSoft, LLC, 825 F.3d 1341, 1346 (Fed. Cir. 2016). SAS Institute Inc. (“SAS”) filed for IPR, arguing that all sixteen of the ‘936 patent’s claims were unpatentable. SAS argued that the patent included elements that were prior art, meaning that the patent utilized designs already in use and therefore could not be patented by ComplementSoft, LLC. The PTAB initiated review on some, but not all, of the patent’s claims and ruled that “claims 1, 3, and 5–10 of the ‘936 patent were unpatentable as obvious in view of the prior art.” SAS Inst. Inc. v. ComplementSoft, LLC. The PTAB found that claim 4 was patentable.

SAS appealed the PTAB’s ruling because the PTAB only reviewed some of the patent’s claims—the ones that the PTAB deemed “substantial”—which SAS argued directly contradicted the federal statute relating to decisions by the PTAB. The statute states that “[i]f an [IPR] is instituted and not dismissed under this chapter, the [PTAB] shall issue a final written decision with respect to the patentability of any patent claim challenged by the petitioner . . . .” 35 U.S.C. § 318 (2012). As SAS challenged all of the patent’s claims, and the PTAB did not issue a final written decision on all of the claims, SAS argued that the patent review and final decision was incorrect.

On appeal to the Federal Circuit, a divided panel upheld the PTAB’s decision based on a 2016 Federal Circuit decision that stated the PTAB need only issue a final written decision on the claims for which review was granted, and the claim-by-claim approach the PTAB took was not in violation of the federal statute. Judge Newman, who dissented in the 2016 decision, again dissented here arguing that the claim-by-claim approach is ineffective and defeats the purpose of the PTAB to efficiently rule on the validity of a patent so that other inventors know whether they can base new items on that patent. The Supreme Court agreed to hear SAS’s challenge to determine, essentially, whether “any patent claims” as written in 35 U.S.C. § 318(a) means“all.”

November 28


Cyan, Inc. v. Beaver City Employees Retirement Fund
No. 15-1439; Cal. Ct. App.

In 2013, Cyan filed an IPO and began trading stock on the New York Stock Exchange. The results were grim and shareholders sued in California Superior Court as a class alleging violations of the Securities Act of 1933 (“’33 Act”), but not alleging any state-law claims.

In two Acts, Congress has attempted to curb abusive class-action litigation based on securities violations. First, in 1995, Congress enacted the Private Securities Litigation Reform Act (“PSLRA”), which amended federal securities laws to impose new class requirements like fee limitations, selection criteria for lead plaintiffs, and automatic stays of discovery pending any motion to dismiss. Second, in response to classes running to state courts, Congress enacted the Securities Litigation Uniform Standards Act (“SLUSA”), which amended the 33 Act and put limits on state court subject matter jurisdiction. Specifically, the Act allows concurrent state claims to continue except as provided by Section 16, which precludes covered class actions (any damages actions on behalf of more than 50 people) alleging state-law securities claims and permits the action to be removed and dismissed in federal court. Now, parties are asking the Court to clarify whether jurisdictional provisions in the SLUSA bar state courts from hearing mixed class and federal class actions or only mixed class actions.

These two statutes have created much confusion in federal district courts. Cyan’s petition for certiorari notes that “39 [federal district court decisions hold] that state courts have subject matter jurisdiction and 10 [hold] that state courts lack subject matter jurisdiction.”

The Court is now charged with interpreting the statutes. The shareholders argue that it would be too broad of an interpretation to say that the statute bars state courts from hearing all Section 16 covered actions. Cyan argues that Congress had a clear intention to curb class actions, and if the statute is only interpreted as barring mixed actions then it doesn’t live up to its congressional purpose. Whatever the Court decides, it will hopefully help cure the current “chaos” in federal district court.

Digital Realty Trust, Inc. v. Somers
No. 16-1276; 9th Cir.

In a case sure to garner the attention of corporate compliance departments, Digital Realty Trust will shed some light on the scope of Dodd-Frank’s protections for whistleblowers. In a reaction to the misdeeds at play during the 2008 financial crisis, Congress enacted Dodd-Frank in 2010 as its toughest regulatory measure on Wall Street yet. The legislation created a whistleblower program that awarded individuals who reported any number of corporate violations. To date, the program has paid out over $154 million to whistleblowers. Importantly, the statute includes an anti-retaliation provision that prohibits employers from retaliating against whistleblowers. The question at issue in Digital Realty Trust is whether the anti-retaliation provision protects employees who do not report violations to the Securities and Exchange Commission (“SEC”). There is a circuit split which the Court has been called on to resolve.

In this particular case, Digital Realty Trust maintained its own code of ethics requiring employees to disclose wrongdoings internally. After the company’s Vice President did just that—disclosed possible securities violations to senior management—Digital promptly fired him. The Northern District of California, citing a 2011 SEC rule that redefined the statute to include protections for those reporting internally, ruled that the Vice President should have been protected. The Ninth Circuit affirmed the lower court’s decision and reliance on the 2011 SEC rule.

The statutory text defines a whistleblower as an “individual who provides . . . information relating to a violation of the securities laws to the Commission.” The Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub. L. 111-203, 124 Stat. 1376 (2010). Digital Realty Trust argues that this statute is unambiguous, as it very clearly only applies to individuals reporting to the SEC. Although they are likely correct, the 2011 SEC rule that the lower courts pointed to did, in fact, attempt to extend the statute to provide coverage for those who only report internally. Digital Realty Trust, however, argues that the SEC violated the Administrative Procedure Act when it published this rule without providing fair notice to the public. Thus, DigitalRealty Trust claims, the Court should follow the plain language of the statute and disregard the rule’s clarification.

If the Court does find in favor of Digital Realty Trust and holds that the anti-retaliation provision only extends to those individuals who reported violations to the SEC, there is a concern in the corporate world that the role of compliance departments will be largely weakened. One law firm partner, in a Law360 article, darkly suggested, “If the Supreme Court decides in favor of Digital, corporate compliance programs will be dead, and their reputations forever tarnished.” Stephen Kohn, Digital Realty Trust v. Somers May Kill Corporate Compliance, Law360 (Sept. 21, 2017 1:14 PM), https://www.law360.com/articles/964208/digital-realty-trust-v-somers-may-kill-corporate-compliance.

November 29


Carpenter v. United States
No. 16-402; 6th Cir.

Under longstanding Fourth Amendment principles, when a person willingly gives information to a third party, she loses an expectation of privacy in that information. Demands for such information therefore do not constitute “searches” within the meaning of the Fourth Amendment. Should the rule apply to smartphone data that can automatically transmit its owner’s location? In the most significant Fourth Amendment case on the Court’s docket this term, the Court will answer that question and potentially limit the breadth of the third-party doctrine.

The information at issue in Carpenter, called “cell site location information” (“CSLI”), records a cell phone’s location based on its connections to nearby cell towers to route calls and data. In urban areas, where cell towers are more densely packed, CSLI can pinpoint a phone’s location with greater precision. Moreover, as smartphone capabilities have multiplied, the volume of connections that they make has increased in turn.

Timothy Carpenter was convicted for his role in a series of armed robberies based in part on CSLI information obtained from his cell phone over a six-month period. Under the Stored Communications Act, 18 U.S.C. § 2703, the government applied for and obtained an order compelling Carpenter’s phone service provider to turn over the records based on “specific and reasonable facts to believe” the records were “relevant and material to an ongoing criminal investigation.” Carpenter moved to exclude the evidence on the grounds that the acquisition of the records constituted a search for which the government lacked probable cause. The district court denied the motion. The Sixth Circuit affirmed, invoking the third-party doctrine to conclude that acquisition of CSLI records did not constitute a search.

The Court has traditionally defined a search as a government action that invades a reasonable expectation of privacy. See Katz v. United States, 389 U.S. 347 (1967) (Harlan, J., concurring). The third-party doctrine emanates from that definition. In Smith v. Maryland, 442 U.S. 735 (1979), the Court held the use of a pen register to record the numbers a person dialed did not constitute a search because a person cannot reasonably expect to keep private numbers it voluntarily transmitted to a phone company. The government argues that Smith is controlling and prevents Carpenter from claiming a privacy interest in location data he transmits to his phone company.

Carpenter argues that CSLI is different from the data at issue in Smith. Given the great variety of tasks for which people have come to use smartphones, he argues, location data can provide the government a detailed and intrusive look into a person’s intimate affairs. Additionally, the Court recently recognized that smartphones pose unique Fourth Amendment concerns. In Riley v. California, 134 S. Ct. 2473 (2014), the Court required police to obtain a warrant before searching the contents of a smartphone due to the extensive volume of personal information the device contains.

Moreover, in United States v. Jones, 565 U.S. 400 (2012), the Court articulated a different test for a Fourth Amendment search based on unlawful trespass. There, the Court found the government had conducted a search when it attached a GPS device to a car and collected location coordinates over an extended period. Carpenter argues that the government’s use of CSLI is analogous to GPS tracking and therefore constitutes a search under the Fourth Amendment. The government replies that Carpenter failed to preserve this argument in the court of appeals, but argues that the case is distinguishable in any event because CSLI does not produce location data as precise as GPS coordinates.

Should the Court decide that the collection of CSLI constitutes a search, it will then have to decide whether such searches require a warrant. The Court could resolve that question on its own or remand to the Sixth Circuit. Still, those with interest in the Fourth Amendment—privacy advocates and law enforcement officials alike—will be interested to see how the Court resolves the threshold question.

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