In November Nathan Wessler ’10 made his first appearance before the US Supreme Court, arguing in Carpenter v. United States, which the New York Times describes as “one of the biggest Fourth Amendment cases in years.” At issue is whether it is constitutional to seize and search historical cellphone location data without a warrant. Wessler, a staff attorney with the American Civil Liberties Union (ACLU) Speech, Privacy, and Technology Project, represented the defendant, Timothy Carpenter, whose conviction in a series of robberies was partially based on 127 days of cellphone location data. Wessler’s Supreme Court argument is just one milestone in an already-exceptional career defending Fourth Amendment rights and civil rights protections for the ACLU.
His first ACLU job was in 2005 as a field organizer at the legislative office in Washington, DC, where he worked on a range of issues including free speech, LGBT rights, religious freedom, and national security. As he worked with ACLU lawyers, Wessler realized that in order to pursue the public interest-focused career he aspired to have, he would need a law degree. He soon was accepted at NYU Law as a scholar in the Root-Tilden-Kern Program.
Rachel Barkow, Segal Family Professor of Regulatory Law and Policy, taught Wessler as a 1L in her Criminal Law class. She describes him as “a real lawyer’s lawyer… that great combination of someone dedicated both to social justice and to the craft of being a lawyer.” Barkow recalls that Wessler would frequently visit office hours to discuss aspects of the criminal justice system that he found troubling, as well as legal strategies to address them.
Wessler returned to the ACLU after law school, this time as a legal fellow with the National Security Project. During his fellowship, Wessler says, he focused on issues that included the US government’s killing of American citizen Anwar Al-Aulaqi in Yemen and unlawful detention at US prisons in Bagram and Guantanamo.
Now at the Speech, Privacy, and Technology Project, Wessler says he enjoys the challenge of working on the legal issues surrounding new and emerging surveillance technology. “I do not have a computer science or technical background, so it’s really been a lot of learning on the job,” he says. In this role, he watches for criminal appeals cases across the country that raise important questions about applying the Fourth Amendment in the digital age, then files amicus briefs as those cases reach state and federal appeals courts.
Carpenter v. United States was just such a case: Wessler’s involvement began with filing an amicus brief at the US Court of Appeals for the Sixth Circuit. In the argument before the Sixth Circuit, Wessler shared time with Carpenter’s defense attorney. When a divided panel of judges held that no warrant was required to access cell phone location data, Wessler joined Carpenter’s attorney in filing a petition to the Supreme Court for review and prepared to take on the oral argument himself.
Julia Sheketoff ’10, a former classmate of Wessler’s, watched him argue Carpenter. “I’ve seen a lot of oral arguments, and particularly given that it was his first time [before the Supreme Court], he was really excellent,” says Sheketoff, who is not involved in the case. “He was able to parry with the justices really effectively and not let them push him off his message.”
The precedents for warrantless searches of telephone records, Wessler says, were set by cases from the 1970s—when telephone records merely showed calls made and received. In Carpenter, Wessler argues that the technological changes that have occurred in the past four decades require new rules that take into account the sheer amount of information that cell phone records now hold.
“If the court were to adopt the government’s argument over cell phone location records, it would be setting Americans up for possibly even more concerning violations of privacy in the many kinds of digital data that are unavoidably collected and held by third party companies,” Wessler says. This data could include stored emails on Google, or even information as personal as heart rate data from a smartwatch and fertility tracking data from a smartphone app.
Beyond his work in Carpenter, Wessler is pursuing similar Fourth Amendment issues as part of a team collaborating with the Electronic Frontier Foundation on a project concerning governmental searches of individuals’ electronic devices at the US border. “The government takes the position that electronic devices should be treated just the same as physical luggage. We’re arguing that just doesn’t make sense as applied to smart phones and laptops because they contain an unprecedented array and depth of highly private information,” Wessler says. “It’s another area where the law just hasn’t been able to catch up to the reality of where we live our lives.”
Posted January 22, 2018