Era of digital privacy may grow from robbery
Justices apply Fourth Amendment in age of electronic devices.
WASHINGTON — The case that could transform privacy law in the digital era began with the armed robbery of a Radio Shack store in Detroit, a couple of weeks before Christmas in 2010. In the next three months, eight more stores in Michigan and Ohio were robbed at gunpoint.
The robbers took bags filled with smartphones. Their own phones would help send them to prison.
On We d nesday, the Supreme Court will consider whether prosecutors violated the Fourth Amendment, which bars unreasonable searches, by collecting vast amounts of data from cellphone companies showing the movements of the man they say organized most of the robberies.
Experts in privacy law said the case, Carpenter v. United States, No. 16-402, was a potential blockbuster.
“Carpenter could be the most important electronic privacy case of the 21st century,” said Jeffrey Rosen, president of the National Constitution Center, a nonprofit group devoted to educating the public about the Constitution.
In a pair of recent decisions, the Supreme Court expressed discomfort with allowing unlimited government access to digital data. It limited the ability of the police to use GPS devices to track suspects’ movements, and it required a warrant to search cellphones.
Technology companies including Apple, Facebook and Google have filed a brief urging the Supreme Court to continue to bring Fourth Amendment law into the modern era. “No constitutional doctrine should presume,” the brief said, “that consumers assume the risk of warrantless government surveillance simply by using technologies that are beneficial and increasingly integrated into modern life.”
The court’s decision, expected by June, will apply the Fourth Amendment, drafted in the 18th century, to a world in which people’s movements are continuously recorded by devices in their cars, pockets and purses, by toll plazas and transit systems. The court’s reasoning may also apply to email and text messages, internet searches, and bank and credit card records.
“The case is hugely important in that it defines the constitutional role in a really wide range of cases,” said Orin Kerr, a law professor who will soon join the faculty at the University of Southern California.
The case concerns Timothy Ivory Carpenter, who witnesses said had planned the robberies, supplied guns and served as lookout, typically waiting in a stolen car across the street. “At his signal, the robbers entered the store, brandished their guns, herded customers and employees to the back, and ordered the employees to fill the robbers’ bags with new smartphones,” a court decision said, summarizing the evidence against him.
In addition to presenting testimony, prosecutors relied on months of records obtained from cellphone companies to prove their case. The records showed that Carpenter’s phone had been nearby when several of the robberies happened. He was convicted and sentenced to 116 years in prison.
Carpenter’s lawyers said cellphone companies had turned over 127 days of records that placed his phone at 12,898 locations, based on information from cellphone towers. Prosecutors could tell whether he had slept at home on given nights and whether he attended his usual church Sunday mornings.
“Never before in the history of policing has the government had the time machine it has here,” said Nathan Freed Wessler, a lawyer with the American Civil Liberties Union, which represents Carpenter. Wessler said prosecutors should be required to obtain a warrant when they seek more than 24 hours’ worth of location data.
Older Supreme Court decisions indicate that no warrant was required. In 1979, for instance, in Smith v. Maryland, the Supreme Court ruled that a robbery suspect had no reasonable expectation that his right to privacy extended to the numbers dialed from his landline phone. The court reasoned that the suspect had voluntarily turned over that information to a third party: the phone company.
Relying on the Smith decision’s “third-party doctrine,” federal appeals courts have said government investigators seeking data from cell- phone companies showing users’ movements also do not require a warrant.
A federal law, the Stored Communications Act, does require prosecutors to go to court to obtain tracking data, but the showing they must make under the law is not probable cause, the standard for a warrant. Instead, they must demonstrate that there were “specific and articulable facts showing that there are reasonable grounds to believe” the records sought “are relevant and material to an ongoing criminal investigation.”