The privacy of emails and photos that are stored in the cloud and even heart rate histories from smartwatches could now be at stake. The Supreme Court takes up a potential case after Thanksgiving that would overturn everything we know about digital privacy.
When they return to the bench after Thanksgiving, justices will be considering whether location data that are stored by a phone service provider, is searchable without a warrant.
The case, Carpenter v. U.S., centers on Timothy Carpenter argues that the government violated his Fourth Amendment right against unreasonable search and seizure when it obtained his cell phone location records from the MetroPCS and Sprint without a search warrant. Authorities then used the particular data as a trial evidence to convict him of a string of robberies at Radio Shack and T-Mobile stores in Michigan and Ohio from December 2010 to March 2011.
The government further argues that it was well within its rights under the Stored Communications Act (SCA) of 1986 to get a court order for such records. The law allows this type of data to be searched if the government can show reasonable grounds to believe that it would be relevant to a criminal investigation.
To obtain a warrant, law enforcement officers, however, must show that there is probable cause.
But beyond the law, the government is arguing that Carpenter lacks a legitimate expectation of privacy because he had voluntarily turned his location information over to a third party when he had signed up for cell service. It’s a legal theory known as the third-party doctrine.
“Petitioner lacks any subjective expectation of privacy in phone-company records of historical cell-site data because they are business records that MetroPCS and Sprint create for their own purposes,” Acting Solicitor General Noel Francisco, Acting Assistant Attorney General Kenneth Blanco, and DOJ Attorney Jenny Ellickson had argued in a court brief.
American Civil Liberties Union (ACLU) attorney Nathan Freed Wessler, who’s representing Carpenter, had called the implications of this argument “stunning.”
“If the government’s position wins, it would imperil the search queries people enter into Google or WebMD, our complete browsing histories showing everything we read online, the heart rate data from a smartwatch saved by Apple, a person’s whole life in photos uploaded to the cloud and so much more,” he had said.
“In the 21st century, we really can’t go about our daily lives without creating these pervasive, highly sensitive digital records held by companies we interact with.”
The ACLU also argues that the government is relying on an outdated law.
Though the law was updated, in part, in 1994, Wessler said that the SCA really hasn’t been touched since 1986. At that time there were only 1,000 cell sites in the U.S. and less than one percent of Americans had a cell phone. Today, he had said that more than 300,000 cell sites exist and 95 percent of Americans have cell phones.
But the government still argues that cell phone location information isn’t personal.
“As explained, the historical cell-site records obtained in this case revealed only that petitioner (or someone using his phone) was in ‘a 3.5 million-square-foot to 100 million-square-foot area’ when placing or receiving a call,” the DOJ attorneys had said in an argument in their brief.
“The records did not (and could not) reveal any information stored on petitioner’s phone or permit law-enforcement officers to learn the sort of detailed personal facts.”
“To do so would preclude SEC [Securities and Exchange Commission] and IRS [Internal Revenue Service] summonses for financial information necessary for their functioning and would bring a halt to countless state prosecutions dependent upon review of third-party records, including public corruption, identity theft, insurance fraud and stalking,” the group had written.
Wessler said that the ACLU acknowledges that police should be able to obtain some of this information within limits.
“Our position is that people have a reasonable expectation that police won’t be able to create a map of longer-term locations,” he had said. “That’s a power police have never had to be able to assemble days, weeks months’ worth of where people have gone.”
