COURT EYES PRIVACY VS. PROTECTION
Cell data has no precedent
WASHINGTON — Not even the justices of the U.S. Supreme Court seem to be sure how much privacy protections Americans have in the vast amount of information their cellphones continuously amass and transmit about them, right down to their every move.
And the legal sources the justices rely on — the Constitution, federal statutes and common law principles — didn’t seem to be much help yesterday as they wrangled with the question of whether the government must obtain a warrant before obtaining cellphone location data — and if so, when.
They did understand that the issue goes far beyond the question presented in the case the justices heard, which is whether the police’s warrantless acquisition of a suspect’s location data over a 127day period violated the Fourth Amendment.
The privacy principles in the case extend to just about every aspect of the lives of the 95 percent of Americans who carry a mobile device.
“I am not beyond the belief that someday a provider could turn on my cellphone and listen to my conversations,” said Justice Sonia Sotomayor, noting people have their phones with them during the most intimate moments of their lives.
The case is a potential blockbuster because neither the Constitution nor other applicable laws or past high court decisions deal squarely with the type of current technology that culls such detailed information about people’s lives as cellphone data. Practical considerations also complicate the issue. The fact that most people know that the information their phones collect gets transmitted to their service providers and cellphone towers cuts against the argument that they have an expectation of privacy.
“It seems to me there’s (a) normal expectation that businesses have your cellphone data,” said Justice Anthony Kennedy. “I think almost everybody knows that. If I know it, everybody does.”
But they also acknowledged the need for limits.
“I can believe that my location at one moment or other moments might be searched by police, but I don’t expect them to track me down for 24 hours over 127 days,” Sotomayor said.
Given the lack of clear precedent, the court will either have to come up with a new rule that would dramatically change the legal landscape, or issue a limited ruling that would leave the important legal question unanswered.
That decision will come before the court’s term wraps up next summer.