Supreme Court jus­tices,

Law en­force­ment’s right to cell­phone in­for­ma­tion de­bated in pri­vacy case

The Washington Post - - FRONT PAGE - BY ROBERT BARNES

in a hear­ing on law en­force­ment’s use of cell­phone data, mostly ap­peared to fa­vor more re­straints on gov­ern­ment ac­cess to dig­i­tal in­for­ma­tion.

A ma­jor­ity of Supreme Court jus­tices seemed to agree Wed­nes­day that the abun­dance of pri­vate in­for­ma­tion avail­able about Amer­i­cans in the dig­i­tal age might re­quire new re­straints on gov­ern­ment’s abil­ity to ac­cess it.

In the spe­cific case be­fore the court, th­ese new lim­its could re­quire law en­force­ment of­fi­cials to prove more to a judge about sus­pected crim­i­nal wrong­do­ing be­fore they are able to col­lect cell-tower records, which can pro­vide a de­tailed record of a per­son’s where­abouts.

But the jus­tices in­di­cated that the ex­plo­sion of dig­i­tal in­for­ma­tion, which is trans­form­ing Amer­i­cans’ ex­pec­ta­tion of pri­vacy, is rais­ing a wide range of le­gal is­sues.

“This is an open box,” Jus­tice Stephen G. Breyer said. “We know not where we go.”

Jus­tice Sonia So­tomayor was the most in­sis­tent on pro­tec­tions. “Most Amer­i­cans, I think, still want to avoid Big Brother,” she said, while also ac­knowl­edg­ing the pub­lic’s in­creas­ing re­liance on the mod­ern tech­nol­ogy that makes sur­veil­lance eas­ier.

Deputy So­lic­i­tor Gen­eral Michael R. Dreeben said that the gov­ern­ment’s use of cell-tower records, an im­por­tant tool for solv­ing crime, did not vi­o­late an in­di­vid­ual’s con­sti­tu­tional pro­tec­tion against un­rea­son­able searches.

The records are kept by an in­di­vid­ual’s car­rier, he noted, and in dis­clos­ing them the com­pany is act­ing as a po­ten­tial wit­ness to a crime.

But Nathan F. Wessler, a lawyer for the Amer­i­can Civil Lib­er­ties Union, said the records serve as a “time ma­chine” for law en­force­ment to re­con­struct a per­son’s minute-by-minute move­ments.

Wessler rep­re­sents Ti­mothy Car­pen­ter, who is serv­ing a 116year sen­tence for his role in armed rob­beries in 2010 and 2011 at Ra­dioShack and T-Mo­bile stores in and around Detroit — as part of a gang steal­ing smart­phones.

One of the men ar­rested iden­ti­fied Car­pen­ter as the ring­leader who typ­i­cally or­ga­nized the rob­beries, sup­plied the guns and acted as a look­out. Au­thor­i­ties asked cell­phone car­ri­ers for 127 days of records that would show Car­pen­ter’s use of his phone.

Such records indi­cate where a cell­phone es­tab­lishes con­nec­tions with a spe­cific cell tower and give a fair rep­re­sen­ta­tion of the vicin­ity of the user. Wessler claimed new tech­nol­ogy can be spe­cific to an area about half the size of the jus­tices’ grand court­room.

In Car­pen­ter’s case, the mass of in­for­ma­tion showed his phone at 12,898 lo­ca­tions, in­clud­ing close to where the rob­beries oc­curred when they took place.

Car­pen­ter’s at­tor­neys say that the gov­ern­ment’s ac­tions vi­o­lated their client’s rights un­der the Fourth Amend­ment, which pro­tects against un­rea­son­able searches. Au­thor­i­ties should have had to con­vince a judge that there was prob­a­ble cause to get the records, they say.

In­stead, un­der the Stored Com­mu­ni­ca­tions Act, au­thor­i­ties had to meet a lesser stan­dard, that there were “rea­son­able grounds to be­lieve” that the records sought “are rel­e­vant and ma­te­rial to an on­go­ing crim­i­nal in­ves­ti­ga­tion.” The gov­ern­ment con­tends that its ac­tions fit squarely with the Supreme Court’s pre­vail­ing prece­dents. In the 1979 de­ci­sion in Smith v. Mary­land, the court ruled that re­quest­ing records that showed the num­bers called from a tra­di­tional home phone did not con­sti­tute what would be con­sid­ered a “search” un­der the Fourth Amend­ment.

Be­cause the caller’s in­for­ma­tion was vol­un­tar­ily trans­mit­ted to a third party — the tele­phone com­pany — the caller had no rea­son­able ex­pec­ta­tion that the num­bers called would re­main pri­vate.

Wessler said Supreme Court prece­dents re­lied upon by the gov­ern­ment were de­cided four decades ago.

“The court could not have imag­ined the tech­no­log­i­cal land­scape to­day,” he said. In the fu­ture, he added, “highly sen­si­tive dig­i­tal records like search queries en­tered into Google, a per­son’s com­plete Web brows­ing his­tory show­ing ev­ery­thing we read on­line, med­i­cal in­for­ma­tion or fer­til­ity track­ing data from a smart­phone . . . would be vul­ner­a­ble.”

Jus­tices Sa­muel A. Al­ito Jr. and An­thony M. Kennedy seemed most ac­cept­ing of the gov­ern­ment’s ar­gu­ments.

“I agree with you, that this new tech­nol­ogy is rais­ing very se­ri­ous pri­vacy con­cerns,” Al­ito told Wessler, “but I need to know how much of ex­ist­ing prece­dent you want us to over­rule or de­clare ob­so­lete.”

Kennedy dis­puted Wessler’s as­ser­tion that most Amer­i­cans don’t know that they are cre­at­ing last­ing records of their where­abouts when they place calls.

“I think ev­ery­body, al­most ev­ery­body, knows that,” Kennedy said, get­ting a laugh when he added, “If I know it, ev­ery­body does.”

But Chief Jus­tice John G. Roberts Jr. said there was lit­tle Amer­i­cans could do to avoid dis­clos­ing sen­si­tive in­for­ma­tion. “You re­ally don’t have a choice th­ese days if you want to have a cell­phone,” he said.

Dreeben noted that the case in­volved in­for­ma­tion about the rout­ing of the calls, not about their con­tent.

But So­tomayor voiced wor­ries about the fu­ture. “As I un­der­stand it, a cell­phone can be pinged in your bed­room. It can be pinged at your doc­tor’s of­fice. It can ping you in the most 10 in­ti­mate de­tails of your life. Pre­sum­ably at some point even in a dress­ing room as you’re un­dress­ing,” she said. “So I am not be­yond the be­lief that some­day a provider could turn on my cell­phone and lis­ten to my con­ver­sa­tions.”

Jus­tice Elena Ka­gan in­di­cated the court’s con­cerns were a nat­u­ral pro­gres­sion from re­cent cases in­volv­ing tech­nol­ogy. Five jus­tices, she noted, had ex­pressed concern about gov­ern­ment’s long sur­veil­lance of a sus­pect us­ing a GPS de­vice.

“The ob­vi­ous sim­i­lar­ity is that, in both cases, you have re­liance on a new tech­nol­ogy that al­lows for 24/7 track­ing,” she said.

But while the jus­tices seemed to have a shared concern, there was lit­tle ap­par­ent agree­ment on the rea­son­ing the court might use to jus­tify a re­stric­tion of the gov­ern­ment’s ac­cess to the records.

Jus­tice Neil M. Gor­such, a con­ser­va­tive, seemed as con­cerned as some of the lib­eral jus­tices about the gov­ern­ment’s abil­ity to get the in­for­ma­tion.

He of­fered that the cell-tower records could be seen as Car­pen­ter’s prop­erty, and thus not avail­able with­out a war­rant, a pro­posal that did not seem to draw in other jus­tices.

Dreeben said Gor­such’s pro­posal would be un­like any of the court’s pre­vi­ous de­ci­sions. He urged the jus­tices to go slowly.

“The tech­nol­ogy here is new,” he said, “but the le­gal prin­ci­ples that this court has ar­tic­u­lated un­der the Fourth Amend­ment are not.” The case is Car­pen­ter v. U.S.



A woman checks her cell­phone as she waits in line to en­ter the Supreme Court to wit­ness the pro­ceed­ings in Car­pen­ter v. U.S.

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