US Supreme Court puts privacy first in a decision that could have wider implications in Digital Age

Profile picture for user jbowles By Jerry Bowles June 24, 2018
Summary:
The Supreme Court has ruled that, bar a few exceptions, law enforcement agencies must get a warrant before that can seize people’s cell-site location information (CSLI)

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In what will likely be perceived as a boon to privacy in the Digital Age in the United States, the Supreme Court has made a major statement on due process for law enforcement agencies that want access to someone’s cell phone location data.

The decision could have wider implications for the surveillance state.

One of the creepiest yet useful realities of the Digital Age is that your cell phone knows where you are at all times. Most newer cellular devices come with GPS already built-in and even those that don’t have GPS can use cell tower position and distance to calculate your location effortlessly and thoroughly.

For law enforcement agencies, access to this kind of data is a free and painless way to gather information about your whereabouts at any moment going back months and years. If the records show that you were at or near the scene of a crime when it happened, they pretty much have you. Of course, if you weren’t there, they have just invaded your privacy big time.

Until Friday’s decision, access to your cell data was remarkably easy for police to obtain. All they had to do was get a subpoena and serve it on your cell-phone carrier, which would then comply and hand over all your location data. Neither the police nor the carrier was required to notify you that they had the information.

In joining the court’s four liberal judges–Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan–in a 5-4 majority decision to extend Fourth Amendment protection to cell phone location data, Conservative Chief Justice John Roberts noted that the case “does not fit neatly within existing precedents.”

The government argued that it didn’t need a warrant for these records based on a 1970s-era ruling that held that once someone shares information with a “third party” — in this case, a cellphone company—that data is no longer protected by the Fourth Amendment. Roberts didn’t buy it:

In 1979, 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.

Roberts position was not a total surprise. In 2014, he led a near-unanimous Supreme Court to rule that it’s unconstitutional for the government to search a smartphone without first obtaining judicial authorization.

Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple–get a warrant,

he wrote.

The Facts of the Case

The latest case, Carpenter v. United States, No. 16-402, argued by the ACLU, stemmed from a series of armed robberies of Radio Shacks and other stores in the Detroit area starting in 2010.

Timothy Carpenter, the titular petitioner in the case, was sentenced to 116 years in federal prison following his convictions for nearly a dozen crimes–mostly robberies and firearm offenses occurring during a four-month period.

In order to link Carpenter to the burglaries, the FBI obtained–without seeking a warrant–127 days’ worth of information comprising 12,898 location points from his carriers MetroPCS and Sprint. The records showed that Carpenter’s phone had been nearby when several of the robberies happened. He was convicted. Chief Justice 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 that agents had violated Carpenter’s Fourth Amendment rights against unreasonable search and seizure when they obtained such detailed records without a warrant based on probable cause. The Supreme Court thought so too, recognizing that the Fourth Amendment must apply to records of such unprecedented breadth and sensitivity. Roberts wrote:

Mapping a cellphone’s location over the course of 127 days provides an all-encompassing record of the holder’s whereabouts…with GPS information, the time-stamped 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.

Nathan Freed Wessler, a staff attorney for ACLU Speech, Privacy, and Technology Project called the Carpenter case “the most consequential privacy decision of the digital age” and added:

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.

My Take

Carpenter is the biggest digital-privacy case the high court has decided in recent years because it serves a rare but much-needed notice that the government does not have carte blanche for the seizure of any data of its choosing without judicial oversight.

Although the case focused narrowly on cell phone location data, legal experts believe it applies to any data generated by modern technologies (my emphasis) and held by private companies rather than in our own homes or pockets. The decision has implications for all kinds of personal information held by third parties, including email and text messages, internet searches, and bank and credit card records. Said the ACLU’s Wessler:

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.

The decision is a groundbreaking update to privacy rights that the digital age has made vulnerable to abuse by the government’s seemingly insatiable appetite for surveillance. A number of technology companies including Apple, Facebook and Google filed a supporting brief urging the Supreme Court to continue to bring Fourth Amendment law into the modern era. The brief said:

No constitutional doctrine should presume that consumers assume the risk of warrantless government surveillance, simply by using technologies that are beneficial and increasingly integrated into modern life.
In short, the good guys won this time. It is far too early to declare complete victory. Expect pushback from the government as it is dragged further into the digital age.

Ironically, the one person who will not benefit from the ruling is Timothy Carpenter. The Fourth Amendment doesn’t apply to law enforcement if they violate rights that didn’t officially exist when the phone records were unlawfully seized.