‘Jones’ Privacy Ruling Ripples Through Electronic Communications Toward App, Web Data
The Supreme Court’s Jones privacy decision is rippling through electronic communications well beyond the GPS tracking it involved, less than two months after the ruling came down, legal experts said. The decision was “very cautious” but “very important,” leaving the court “potentially poised to change 40 years” of law on Americans’ privacy in relation to the government, law Professor Stephen Henderson of the University of Oklahoma said on an American Bar Association webcast. The court decided Jones “on the narrowest possible ground, but they certainly left the door open in the years to come” for litigation to decide profound questions concerning technologies besides GPS, said moderator William Baker of Wiley Rein.
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At least one federal judge, in the Southern District of Texas, has held unconstitutional in light of the ruling the reduced probable-cause standard in Section 2703(d) of the Electronic Communications Privacy Act (ECPA), said Cynthia Orr of the Goldstein, Goldstein and Hilley law firm. The ACLU, Center for Democracy & Technology and Electronic Frontier Foundation were due to file friend-of-the-court briefs Friday in a 5th U.S. Appeals Court challenge to the ruling, she said, and conflicts between the circuits can be expected within the next couple of years.
Criminal defendants already are taking advantage of Jones in connection with evidence involving various kinds of electronic communications, Orr said. “I'm raising new motions to suppress all sorts of information that previously there was very little support” in court decisions for going after, she said. In a murder trial recently ended in San Antonio, the only evidence contradicting the defendant’s alibi and placing him near the crime scene was cellphone location data, Orr said. “We're going to be raising a Fourth Amendment issue that wasn’t raised before.” In 2010’s Quon decision, eight Supreme Court justices had already clearly recognized “strong expectations of privacy in electronic communications,” Henderson said.
"The courts generally … have ruled no warrants are required to obtain these cellsite location records from wireless carriers,” said Michael Altschul, the CTIA’s general counsel. But he said the reach of cells, which used to be miles, is shrinking to that of Wi-Fi routers, producing “exactly the kind of granular location information that has created concern."
Carriers treat government information requests as not their problem, Altschul said. They get what appears to be a valid order and “they respond to it,” he said. In “exigent circumstances,” such as kidnappings, carriers won’t even require orders until after they provide investigators requested information, Altschul said. “I'm not so confident the providers can just sit back” and wash their hands of responsibility, Henderson said. Amazon.com fights demands for customer information, and carriers could, too, he said. Amazon has had the benefit of information beyond production orders that carriers don’t, Altschul replied. He contrasted the Obama administration’s arguments against restrictions on law enforcement with its advocacy of strengthened consumer privacy protections in relation to business.
Google and other providers of location-based services for smartphones also gather and often keep and mine “very granular location information,” Altschul said. There’s a question under the ECPA whether this information constitutes a little-protected business record or more strongly protected content, he said. Judges have ruled queries to search engines to be content, Altschul said. ECPA’s complex classification “game” aside, “it wouldn’t make any sense” under the Fourth Amendment’s warrant requirement to treat location data as unprotected business information when it’s gathered to enable a voice call but recognize that it must be content when sent to Google Maps solely use its service, Henderson said.
The Jones ruling throws into sharp question the high court’s broad principle that anyone who voluntarily gives information to a business has no expectation of privacy about it that a government investigation can violate, the lawyers said. The handwriting is on the wall for what’s called the third-party doctrine, Henderson said. Justice Sonia Sotomayor, the swing vote in Jones, made it clear that the theory is “at least going to get another look, and it may be done away with,” Orr said. Baker agreed.