Court backs cell privacy
Dissenting justices: Ruling will inhibit government work to prosecute crimes
The U.S. Supreme Court rules the government must obtain warrants before it gets records tracking past movements of people by cellphone locations.
WASHINGTON – The Supreme Court ruled Friday that the government cannot monitor people’s past movements for weeks or months by tracking the location of their mobile phones without a warrant.
In a ruling that could have broad implications for privacy rights in the digital age, justices on both sides of the ideological spectrum said rapid advances in technology make decades- old rules on data privacy inadequate.
It was another in a series of digital privacy verdicts issued by the high court, following rulings in recent years that police cannot use GPS equipment to track vehicles or search cellphones without a warrant.
Chief Justice John Roberts wrote the opinion and was joined by the court’s four liberal justices. He stressed that it was a narrow decision that does not question conventional surveillance techniques and tools, such as real-time cellphone location data or security cam-
“What does the Fourth Amendment mean when you can, through technology, literally see through walls with heat imaging?” John Roberts
Chief justice of the U.S., in majority opinion
eras. And he said warrants can be skipped in extreme cases involving imminent threats.
But historical cell-site records raise
even greater privacy concerns than GPS monitoring, Roberts said.
“While individuals regularly leave their vehicles, they compulsively carry cellphones with them all the time,” he said. “A cellphone faithfully follows its owner beyond public thoroughfares and into private residences, doctor’s offices, political headquarters, and other potentially revealing locales.”
The court’s other conservatives vehemently disagreed, writing four times as much in their various dissents than Roberts did for the court’s majority.
Justice Samuel Alito called it a “revolutionary” ruling that “guarantees a blizzard of litigation while threatening many legitimate and valuable investigative practices upon which law enforcement has rightfully come to rely.”
The case grew out of a series of armed robberies in Michigan and Ohio in 2010 and 2011. To prosecute its case against Timothy Carpenter, the government obtained cellphone records that revealed his approximate location over 127 days, placing him in proximity to the crimes.
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 standard.
Lower courts upheld the search of cell tower records under the “third-party doctrine,” used in earlier Supreme Court cases to uphold government access to suspects’ bank records, as well as phone numbers called from landlines. Consumers should know that wireless carriers can track them, the theory goes, so their locations are not private.
But the court ruled that cellphone location data is different from earlier examples of records shared with third parties. When the court decided an earlier case on that basis in 1979, Roberts said, “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.”
Furthermore, he said, the threat to privacy extends beyond criminal suspects to the 400 million devices in the United States. “This newfound tracking capacity runs against everyone,” Roberts warned.
In 2016, police made some 125,000 requests for cellphone location data from Verizon and AT&T alone, often involving several suspects over periods of months. Courts routinely grant those requests under the 1986 law.
But privacy groups warned that extending the theory to cellphone location data could be a slippery slope leading to exposure of email and text messages, social media communications, internet browsing histories and the so-called “Internet of Things,” from Siri to Fitbits.
“Today’s decision rightly recognizes the need to protect the highly sensitive location data from our cellphones, but it also provides a path forward for safeguarding other sensitive digital information in future cases — from our emails, smart home appliances, and technology that is yet to be invented,” said American Civil Liberties Union attorney Nathan Wessler, who argued Carpenter’s case before the court.
Major technology companies had submitted briefs on Carpenter’s side, including Google, Facebook, Apple, Verizon, Twitter, Cisco and Microsoft. They urged the court to reconcile Fourth Amendment protections with “the changing realities of the digital era.”
Since 2001, the court has leaned toward protecting privacy from modern technology. That year, it ruled 5-4 that police needed a search warrant to use a thermal imaging device outside a private home to detect the heat required to grow marijuana inside. The GPS and cellphone contents rulings followed in 2012 and 2014.
Roberts referred to the thermal imaging case a decade later in identifying the clash between privacy and technology as “the real challenge for the next 50 years.”
“What does the Fourth Amendment mean when you can, through technology, literally see through walls with heat imaging?” he said.