Cellphone
online? What about today’s “Internet of Things” — Fitbits and medical devices, cameras and security systems, Google Home and Siri?
Not to worry: The Supreme Court is on the case.
Without shedding their affinity for morning coats and quill pens nor their disdain for communicating by email, the justices will hear Carpenter’s lawyers argue Wednesday that the “thirdparty doctrine” presents a clear and present danger in the digital age.
“This is the most important Fourth Amendment case we’ve seen in a generation,” said Nathan Freed Wessler of the American Civil Liberties Union, who will argue the case in court. A ruling in favor of the government, he said, would “make our lives into an open book.”
Nonsense, says the Trump administration, backed by 19 states and the nation’s district attorneys. Though tracking suspects’ travel has proved invaluable to law enforcement, they argue, a decision in favor of the thirdparty doctrine need not open the door to email and other data stored on the Internet or in the cloud.
“If businesses’ possession of great quantities of digital information raises new privacy concerns, legislatures are well positioned to address them,” Solicitor General Noel Francisco’s brief to the court says. “Policymakers can enact additional privacy protections if society deems them warranted.”
Supreme Court swings
To prosecute their case against Carpenter for the robberies in 2010 and 2011, the government used cellphone records to locate him 12,898 times over 127 days— an average of101 times daily that he tried to send or receive calls, texts, emails or other information.
The records were obtained under the Stored Communications Act of 1986, which allows phone companies to turn over records if the government has “reasonable grounds” to believe they will help a criminal investigation. A search warrant requires a tougher “probable cause” standard.
In 2016, police made about 125,000 requests for cellphone location data from Verizon and AT& T, often involving several suspects over months.
The Supreme Court has veered in recent decades from permitting to prohibiting such searches. In two cases from the 1970s, the court ruled that criminal suspects had no privacy rights in records maintained by banks and phone companies — the latter case involving the numbers called from landlines.
In recent years, the justices have swung back the other way. In 2012, they ruled 9- 0 that police violated a suspect’s rights by attaching a GPS tracker to his car for 28 days. Though the case was decided on trespassing grounds, five justices said the thirdparty doctrine might be out of date.
“This approach is ill- suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks,” Justice Sonia Sotomayor wrote.
Two years later, the court ruled unanimously that police cannot search cellphones and smartphones during arrests without a warrant. Chief Justice John Roberts noted that the devices were “a pervasive and insistent part of daily life.”
“The phrase ‘ There’s an app for that’ is now part of the popular lexicon,” Roberts wrote. “The average smartphone user has installed 33 apps, which together can form a revealing montage of the user’s life.”
300,000 cell towers
Thisweek’s case focuses not on the contents of Carpenter’s phone or his text and voice conversations but on his whereabouts. When the robberies were committed, data from cell towers identified Carpenter’s location within a few miles, often just a few hundred yards. Now that there are more than 300,000 cell towers in the USA, the data are evenmore accurate.
Defenders of the status quo contend that increased convenience and security require some loss of privacy. “Most Americans understand that there is a necessary diminution of privacy in the digital era and are willing to accept the tradeoff,” the National District Attorneys Association said in court papers.
Technology companies and privacy rights groups argue that the thirdparty doctrine must be revised. More than 95% of U. S. adults have cellphones and 77% own smartphones, according to the PewResearch Center.