Jus­tices pon­der need for war­rant for cell­phone tower data

The Oneida Daily Dispatch (Oneida, NY) - - Front Page - By Mark Sher­man

WASH­ING­TON » Like al­most ev­ery­one else in Amer­ica, thieves tend to carry their cell­phones with them to work.

When they use their phones on the job, po­lice find it eas­ier to do their jobs. They can get cell­phone tower records that help place sus­pects in the vicin­ity of crimes, and they do so thou­sands of times a year.

Ac­tivists across the po­lit­i­cal spec­trum, me­dia or­ga­ni­za­tions and tech­nol­ogy ex­perts are among those ar­gu­ing that it is al­to­gether too easy for au­thor­i­ties to learn re­veal­ing de­tails of Amer­i­cans’ lives merely by ex­am­in­ing records kept by Ver­i­zon, T-Mo­bile and other cell­phone ser­vice com­pa­nies.

On Wed­nes­day, the Supreme Court hears its latest case about pri­vacy in the dig­i­tal age. At is­sue is whether po­lice gen­er­ally need a war­rant to re­view the records.

Jus­tices on the left and right have rec­og­nized that tech­nol­ogy has al­tered pri­vacy con­cerns. The court will hear ar­gu­ments in an ap­peal by

fed­eral prison in­mate Ti­mothy Car­pen­ter. He is serv­ing a 116-year sen­tence af­ter a jury con­victed him of armed rob­beries in the Detroit area and north­west­ern Ohio.

In­ves­ti­ga­tors helped build their case by match­ing Car­pen­ter’s use of his smart­phone to cell tow­ers near Ra­dio Shack and T-Mo­bile stores that had been robbed. The ques­tion is whether pros­e­cu­tors should have been re­quired to con­vince a judge that they had good rea­son, or prob­a­ble cause, to be­lieve Car­pen­ter was in­volved in the crime. That’s the stan­dard­set out in the Con­sti­tu­tion’s Fourth Amend­ment, which also pro­hibits un­rea­son­able searches. Pros­e­cu­tors ob­tained the records by meet­ing a lower stan­dard of proof.

The Amer­i­can Civil Lib­er­ties Union, rep­re­sent­ing Car­pen­ter, said in court pa­pers that the records “make it pos­si­ble to re­con­struct in de­tail ev­ery­where an in­di­vid­ual has trav­eled over hours, days, weeks or months.”

In Car­pen­ter’s case, au­thor­i­ties ob­tained cell­phone records for 127 days and could de­ter­mine when he slept at home and where he at­tended church on Sun­day, said the ACLU’s Nathan Freed Wessler.

Courts around the coun- try have wres­tled with the is­sue. The most relevant Supreme Court case is nearly 40 years old, be­fore the dawn of the dig­i­tal age, and the law on which pros­e­cu­tors re­lied to ob­tain the records dates from 1986, when few peo­ple had cell- phones.

The judge at Car­pen­ter’s trial re­fused to sup­press the records, and a fed­eral ap­peals court agreed. The Trump ad­min­is­tra­tion said the lower court de­ci­sions should be up­held.

Nine­teen states sup- port­ing the ad­min­is­tra­tion said the records “are an in­dis­pens­able build­ing block” in many in­ves­ti­ga­tions. There is no ev­i­dence the records have been used im­prop­erly and re­quir­ing a war­rant for them would re­sult in more crimes go­ing un­solved, the states said.

The ad­min­is­tra­tion re­lied in part on a 1979 Supreme Court de­ci­sion that treated phone records dif­fer­ently than the con­ver­sa­tion in a phone call, for which a war­rant gen­er­ally is re­quired.

The court said in Smith v. Mary­land that tele­phone users have no pri­vacy right to the num­bers they dial. Not only must the phone com­pany com­plete the call us­ing its equip­ment, but it also makes a record of calls for billing and other pur­poses, the court said.

But that case in­volved a sin­gle home tele­phone.

More re­cently, the jus­tices have ac­knowl­edged that the won­ders of tech­nol­ogy also can af­fect Amer­i­cans’ pri­vacy, and also strug­gled with strik­ing the right bal­ance.

Speak­ing in New Zealand last sum­mer, Chief Jus­tice John Roberts said he and his col­leagues are not ex­perts in the rapidly chang­ing field. But he also reaf­firmed his view as ex­pressed in a 2014 opin­ion that gen­er­ally re­quires po­lice to get a war­rant to search the cell­phones of peo­ple they ar­rest.

“I’ll say it here: Would you rather have law en­force­ment rum­mag­ing through your desk drawer at home, or rum­mag­ing through your iPhone?” Roberts asked. “I mean, there’s much more pri­vate in­for­ma­tion on the iPhone than in most desk draw­ers.”

Jus­tices Sa­muel Al­ito and So­nia So­tomayor also have writ­ten about their con­cerns over tech­nol­ogy’s ef­fect on pri­vacy.

In that same 2014 case, Al­ito said Congress is bet­ter sit­u­ated than the courts to ad­dress the con­cerns. Two years ear­lier, So­tomayor said the court may need to bring its views in line with the dig­i­tal age. “I for one doubt that peo­ple would ac­cept with­out com­plaint the war­rant­less dis­clo­sure to the Gov­ern­ment of a list of ev­ery Web site they had vis­ited in the last week, or month, or year,” she wrote in a 2012 case about po­lice in­stal­la­tion of a track­ing de­vice on a car with­out a war­rant.


In this file photo an iPhone is seen in Wash­ing­ton. The Supreme Court is hear­ing a case on about pri­vacy in the dig­i­tal age that tests whether po­lice gen­er­ally need a war­rant to re­view cell­phone tower records. Po­lice use the records to help place sus­pects in the vicin­ity of crimes. Rights groups across the po­lit­i­cal spec­trum, me­dia or­ga­ni­za­tions and tech­nol­ogy ex­perts are among those ar­gu­ing that it is too easy for au­thor­i­ties to learn re­veal­ing de­tails of Amer­i­cans’ lives merely by ex­am­in­ing the records kept by cell­phone ser­vice com­pa­nies.

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