The Supreme Court on Friday handed down what is arguably the most consequential privacy decision of the digital age, ruling that police need a warrant before they can seize people’s sensitive location information stored by cellphone companies.

The case specifically concerns the privacy of cellphone location data, but the ruling has broad implications for government access to all manner of information collected about people and stored by the purveyors of popular technologies. In its decision, the court rejects the government’s expansive argument that people lose their privacy rights merely by using those technologies.

Carpenter v. U.S., which was argued by the ACLU, involves Timothy Carpenter, who was convicted in 2013 of a string of burglaries in Detroit. To tie Carpenter to the burglaries, FBI agents obtained — without seeking a warrant — months’ worth of his location information from Carpenter’s cellphone company. They got almost 13,000 data points tracking Carpenter’s whereabouts during that period, revealing where he slept, when he attended church, and much more. Indeed, as Chief Justice John Roberts wrote in Friday’s decision, “when the Government tracks the location of a cell phone it achieves near perfect surveillance, as if it had attached an ankle monitor to the phone’s user.”.

The ACLU argued the agents had violated Carpenter’s Fourth Amendment rights when they obtained such detailed records without a warrant based on probable cause. In a decision written by Chief Justice John Roberts, the Supreme Court agreed, recognizing that the Fourth Amendment must apply to records of such unprecedented breadth and sensitivity:

Mapping a cell phone’s location over the course of 127 days provides an all-encompassing record of the holder’s whereabouts. As with GPS information, the timestamped data provides an intimate window into a person’s life, revealing not only his particular movements, but through them his ‘familial, political, professional, religious, and sexual associations.’

The government’s argument that it needed no warrant for these records extends far beyond cellphone location information, to any data generated by modern technologies and held by private companies rather than in our own homes or pockets. To make their case, government lawyers relied on an outdated, 1970s-era legal doctrine that says that once someone shares information with a “third party” — in Carpenter’s case, a cellphone company — that data is no longer protected by the Fourth Amendment. The Supreme Court made abundantly clear that this doctrine has its limits and cannot serve as a carte blanche for the government seizure of any data of its choosing without judicial oversight.

“There is a world of difference between the limited types of personal information addressed” by the 1970s doctrine, “and the exhaustive chronicle of location information casually collected by wireless carriers today,” the decision reads. Back then, “few could have imagined a society in which a phone goes wherever its owner goes, conveying to the wireless carrier not just dialed digits, but a detailed and comprehensive record of the person’s movements.”

If the government had its way, virtually none of our sensitive information held by tech companies would enjoy the privacy rights guaranteed by the Constitution. Consider the consequences of that argument: Google and Facebook store of our photographs and messages; many of us own smart devices like Amazon’s Echo, which know our musical tastes, shopping history, and even the contents of intimate conversations; and our health and fitness apps know about our physical activity and sleep patterns. These examples barely scratch the surface when it comes to the information amassed by the websites, apps, and other internet-connected devices we rely on for convenience. The government wants easy access to all of it.

While the decision extends in the immediate term only to historical cellphone location data, the Supreme Court’s reasoning opens the door to the protection of the many other kinds of data generated by popular technologies.

Today’s decision provides a groundbreaking update to privacy rights that the digital age has rendered vulnerable to abuse by the government’s appetite for surveillance. It recognizes that “cell phones and the services they provide are ‘such a pervasive and insistent part of daily life’ that carrying one is indispensable to participation in modern society.” And it helps ensure that we don’t have to give up those rights if we want to participate in modern life. 

With his hastily issued executive order on family separation on Wednesday, President Trump presented America with a false choice: If you don’t want me to tear infants from their mother’s arms, I’ll just put entire families in jail. 

Specifically, Trump directed the Department of Homeland Security (DHS) to keep families in custody “during the pendency of any criminal improper entry or immigration proceedings involving their members.” He also directed the Department of Defense and all other federal agencies to let DHS use their facilities so that family jail space can be expanded as quickly as possible. 

Trump’s plan is inhumane and wrong. The American Academy of Pediatrics and other child-welfare experts have found that jailing children and parents can severely damage their physical and mental health, even irreversibly. When President Obama expanded family detention in 2014, his actions were met with swift condemnation from immigrants rights, civil rights, and criminal reform organizations, including the ACLU. A federal court put the brakes on that expansion, applying a longstanding rule that prohibits the detention of children in substandard facilities and favors their release. 

Rather than jailing families who are in deportation proceedings, the government should release anyone who is not a flight risk, or whose flight risk can be mitigated by an alternative to detention. Such alternatives are designed to ensure court appearance and compliance with any final court orders, but they do even more — they allow families to live outside prison walls while their case moves through the system. That allows them to more easily find an attorney and prepare their defense — and non-detained immigrants with legal representation are far more likely to win legal relief. It also means that parents can raise their own children as normally as possible, limiting the long-term trauma to the family.

Trump's Family Separation Crisis: How to Help

Despite these obvious advantages, in June 2017, the Trump administration canceled the Family Case Management Program, which was run by Immigration and Customs Enforcement (ICE) as an alternative to detention for families seeking asylum. The program operated in five regions: New York City/Newark, Los Angeles, Chicago, Miami, and Baltimore/Washington, D.C. It provided case management, referrals for support services, and legal orientation, in partnership with community-based non-governmental organizations, in order to make sure that vulnerable families’ most urgent needs were met and they had the information they needed to comply with legal obligations.

The Trump administration would have you believe that releasing immigrants while their cases proceed in court encourages them to disappear from the government’s radar. That’s just false. The Family Case Management Program had a 99 percent effectiveness rate — meaning almost every single person enrolled in the program showed up for all immigration appointments and court hearings. And it was fiscally responsible — just $36 per day per family, compared to $319 per day per person for family detention.        

And not all families need the level of support provided by the Family Case Management Program. The government still has the option of releasing families on recognizance, bond, or parole while their cases proceed, and it should be doing so when more intensive supervision is unnecessary to mitigate flight risk. In March, the ACLU, Human Rights First, and the Center for Gender and Refugee Studies sued the administration for jailing asylum seekers indefinitely rather than following their own policy and releasing them on humanitarian parole. That case is pending. 

The administration must reinstate the Family Case Management Program or other alternatives that provide families with community-based support services. It must use its authority to release families on recognizance, bond, and parole. It must reverse its plan to build new jails for children and their parents. And Congress must refuse to fund family detention beds.

Family separation is a crisis of the Trump administration’s own making — a crisis it is trying to replace with a new one. Jailing thousands of asylum-seeking families is unnecessary and the wrong way forward. If the president thinks his executive order will bring the nationwide outrage over his border policies to an end, he is deeply mistaken. 

On Monday morning, the U.S. Supreme Court refused to take up another challenge to state nondiscrimination laws protecting LGBT people. Instead, it asked the Washington Supreme Court to take a fresh look at a case about a flower shop that refused to sell flowers to a same-sex couple for their wedding in violation of state law. The remand provides a chance for the state court to clarify the meaning of the Supreme Court’s recent decision in Masterpiece Cakeshop as it applies to this case.

In 2017, the Washington Supreme Court ruled unanimously for the same-sex couple in Arlene’s Flowers v. Washington, and there’s no reason to think its analysis and ruling will change when it reconsiders the case in light of the Masterpiece Cakeshop decision.

The Masterpiece case involved Dave Mullins and Charlie Craig, a same-sex couple who went to a Denver bakery in search of a cake for their wedding reception. When the bakery refused to sell them a cake because they are a same-sex couple, they sued under Colorado’s longstanding nondiscrimination law. The bakery claimed that the Constitution’s protection of free speech and freedom of religion gave it the right to discriminate regardless of the state’s civil rights law. 

The Supreme Court’s decision did not decide that question. Instead, it held that the Colorado Civil Rights Commission displayed anti-religious bias when ruling on Dave and Charlie’s discrimination claim. This bias, the court said, invalidated the commission’s ruling against the bakery. 

The constitutional problem that the Supreme Court found in the bakery case — anti-religious bias by a government adjudicator — is simply not present in the flower shop case. A ruling for the couple in Arlene’s Flowers on remand would underscore that the Supreme Court’s decision in Masterpiece Cakeshop does not provide a license to discriminate against LGBT people or against anyone else protected by nondiscrimination laws. 

The facts in the Arlene’s Flowers case are quite similar to the bakery case — with one crucial difference. Rob Ingersoll and Curt Freed went to Arlene’s Flowers, a local florist in their small Eastern Washington town, seeking flowers for their wedding. The flower shop refused to sell them flowers because of the owner’s religious objection to same-sex couples getting married. Rob and Curt had been planning a wedding with about 100 of their close friends and family, but after being turned away by the flower shop, they were fearful of being turned away by other vendors.

Consequently, they decided to scale their wedding back to a private ceremony at home with 10 people, which they could arrange with minimal help from outside vendors. Just as in Masterpiece Cakeshop, the state courts in Arlene’s Flowers ruled unanimously that the flower shop unlawfully discriminated against Rob and Curt when it refused to sell them flowers. They also rejected the businesses’ claim that the Constitution gave them a right to violate the state’s discrimination law. 

There is, however, one critical difference between Arlene’s Flowers and Masterpiece Cakeshop: There is no evidence in Arlene’s Flowers of anti-religious bias on the part of the Washington courts that ruled against the flower shop. In fact, the Washington courts have repeatedly recognized the importance of religious freedom.

Alliance Defending Freedom, the anti-LGBT group that represents both the bakery and the flower shop, is arguing that Washington Attorney General Bob Ferguson displayed anti-religious bias that violates the rule set forth in the Masterpiece Cakeshop decision by seeking to enforce the state’s anti-discrimination law against the flower shop. 

It’s the job of the Washington attorney general to enforce the state’s laws, including its laws barring discrimination. Bringing a charge of discrimination against a business that is open to the public but turns away customers because they are LGBT is not an anti-religious act, it’s the neutral enforcement of the law.  Attorney General Ferguson has repeatedly sought to enforce the Constitution’s protections for freedom of religion, for example, by challenging the Muslim ban to stop the federal government’s explicit discrimination against people based on their religion.

The remand of Arlene’s Flowers to the Washington Supreme Court provides an opportunity for that court to make clear that enforcing civil rights laws is not a sign of anti-religious bias and to reject the argument that the state violated the U.S. Supreme Court’s decision in Masterpiece Cakeshop.