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Supreme Court to decide on the future of warrantless phone tracking

A series of armed robberies could be profoundly connected to your digital privacy and the government’s ability to track you and your phone in the future. On Wednesday (November 29), the US Supreme Court will consider the case Carpenter v. United States to establish whether the law enforcement must obtain a warrant before accessing the massive trove of data that cell phone providers gather about their customers’ movements.

Background of Carpenter v. United States

Between December 2010 and March 2011, Timothy Carpenter set up a series of robberies of several cell phone stores in Michigan and Ohio. After Carpenter and his accomplices were apprehended, the FBI sought and received several months of Carpenter’s cell-site records.

It’s becoming increasingly popular for prosecutors to request this kind of phone evidence from tech companies. In this case, they used 127 days-worth of cell phone location data, a total of almost 13,000 data points, to convey a detailed account of Carpenter’s comings and goings, which ultimately resulted in his conviction and 116-year prison sentence.

Carpenter and his attorneys disputed the conviction, arguing that the warrantless search of the phone data had violated his Fourth Amendment rights. After the Sixth Circuit Court of Appeals concluded that the Fourth Amendment’s warrant requirement did not apply to cell phone tracking, Carpenter ran out of options and filed a petition at the Supreme Court.

On Wednesday, American Civil Liberties Union (ACLU) attorney Nathan Freed Wessler will argue that the Fourth Amendment requires federal agents to get a probable cause warrant before acquiring extensive data about an individual’s phone location.

The government’s argument

Supporters of the status quo contend that increased convenience and security requires some loss of privacy. The law enforcement’s take on the issue rests on the so-called “third-party doctrine,” a judicially developed rule that a person defers their constitutional privacy rights in information that they give to a third party, such as a telecom company.

So government’s reasoning goes like this: You have voluntarily turned over your data to a phone company, which is a third party. Why would you expect privacy on the records that these companies keep? If they offered the data for sale to other companies, would you have a claim to the profit? You wouldn’t.

The counterargument

The counterargument is that the government is relying on a precedent that deals with different circumstances. The phone information that was debated in the Smith v. Maryland case, which originally established the third-party doctrine, was not very revealing; it only showed the number you called.

Now 77% of the US population own smartphones and carry them everywhere they go, implicitly allowing their phone carriers to gather a wealth of data. By constantly pinging nearby cell phone towers, a phone is leaving an entire trail of digital breadcrumbs for the government to follow. The interaction between cell sites and phones lets carriers log and store details such as the date, time and length of a call. Moreover, they record the direction of the connecting phone’s signal and, often, the distance of the phone from the cell site.

To expand this even further, almost every form of electronic information, from our emails to Google searches to contact lists to the websites we visit, is exposed to third parties.

“The case is about better defining the privacy protections that people have and the records that are created when internet devices are used,” Carpenter’s lawyer Harold Gurewitz said.

Attorney Wessler explained that the ACLU is calling for the court to “craft a rule to provide protection in the digital age and the basis to determine other data that should be protected.”

“The rule we’re asking for is quite narrow,” he noted.

Similar cases

Carpenter v. United States is the most recent in a series of cases that have required the Supreme Court to give thought to the relevance of analog-era standards to digital-age technologies.

In United States v. Jones, a 2012 Supreme Court case, justices ruled 9-0 that police had violated a suspect’s rights by attaching a GPS to their car and secretly tracking them without probable cause.

In a concurring opinion in the case, Justice Sonia Sotomayor stated that people reveal a great deal about themselves as they carry out routine tasks in the digital age. She wrote: “People disclose the phone numbers that they dial or text to their cellular providers; the URLs that they visit and the email addresses with which they correspond to their Internet service providers; and the books, groceries and medications they purchase to online retailers.”

“It may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties,” Justice Sotomayor wrote.

The Supreme Court also ruled in 2014’s Riley v. California that the police require a warrant to search a person’s phone upon arrest, showing that the high court understands the need to extend some privacy protections to our phones.

As Justice Roberts observed in that decision, modern phones “could just as easily be called cameras, video players, Rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps or newspapers.”

Comments from other parties

Several leading technology companies, including Google, Facebook, Apple, Verizon and Twitter, have filed and signed an amicus brief in the case, claiming that the principles of the Fourth Amendment must adapt to the digital era.

Columbia University’s Knight First Amendment Institute filed another brief, highlighting the intimate relationship we often have with our smartphones: “CSLI tracking is personal…[and] highly likely to correspond to the precise location of an individual.”

Although very few issues manage to get support from different sides of the political spectrum in 2017 America, this is one of them. A number of conservative organizations, including the Gun Owners Foundation, Gun Owners of America, Inc., Citizens United Foundation, the Conservative Legal Defense and Education Fund and others, joined in yet another an amicus brief for the petitioner. In their filing, they wrote: “The government certainly cannot rely on supposed voluntary submission of data to a cell phone provider when it was the federal government that designed the very system of cell phone use that now exists.”

Significance of the case

Fred Cate, professor of law at Indiana University, wrote that the case “will send a shock wave” irrespective of how the Supreme Court decides. It the Court ruled in favor of Carpenter, there would probably be other petitions to revisit criminal cases that were judged based on cell phone data obtained without a warrant.

However, to grasp the full significance of the Carpenter case, it’s necessary to consider the consequences the government’s arguments have for the First Amendment rights as well as the Fourth. The decision of the case is likely to have far-reaching implications for the freedoms of speech, press and association.

In judging whether Carpenter had a right to privacy in his location information, the Court should also take into account these indispensable democratic freedoms. It should look into what will be left of them if the government gets access to the information that cell phone providers are constantly collecting about us, and to other sensitive details that we passively and routinely share with third parties.



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