Supreme Court Hands Privacy Advocates Win in Cell Records Case
The Supreme Court ruled 5-4 police generally need a warrant to collect cellphone location data from carriers, in what some see as a landmark privacy decision but one the ruling noted only dealt with the specific case. It's the first time the court directly tackled Fourth Amendment protection of cellphone records. Chief Justice John Roberts wrote the decision. Carpenter v. U.S. was heard in November (see 1711290043).
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“The question we confront today is how to apply the Fourth Amendment to a new phenomenon: the ability to chronicle a person’s past movements through the record of his cell phone signals,” Roberts wrote. “Given the unique nature of cell phone location records, the fact that the information is held by a third party does not by itself overcome the user’s claim to Fourth Amendment protection.” Cellphone mapping “provides an all-encompassing record of the holder’s whereabouts,” Roberts wrote. Cellphone records raise more privacy concerns than the location of vehicle tracked through GPS, he said. “While individuals regularly leave their vehicles, they compulsively carry cell phones with them all the time.”
The dispute dates to robberies in Detroit in 2011. Police gathered months of phone location data from Timothy Carpenter's wireless provider before charging him. They tracked him at 12,898 locations over 127 days. The 6th U.S Circuit Court of Appeals upheld the search.
The nature of the data gives police “access to a category of information otherwise unknowable,” Roberts said. “The Government can now travel back in time to retrace a person’s whereabouts, subject only to the retention polices of the wireless carriers, which currently maintain records for up to five years.”
The opinion was supported by the court’s traditionally more liberal members: Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan. Each of the four other justices filed separate dissents.
Justice Anthony Kennedy said the decision was inconsistent with earlier rulings finding people have no protections for records from third parties, from banks to cellphone companies. “The new rule the Court seems to formulate puts needed, reasonable, accepted, lawful, and congressionally authorized criminal investigations at serious risk in serious cases, often when law enforcement seeks to prevent the threat of violent crimes,” Kennedy wrote. “It places undue restrictions on the lawful and necessary enforcement powers exercised not only by the Federal Government, but also by law enforcement.”
The decision “guarantees a blizzard of litigation while threatening many legitimate and valuable investigative practices upon which law enforcement has rightfully come to rely,” wrote Justice Samuel Alito.
“This is a groundbreaking victory for Americans’ privacy rights,” said American Civil Liberties Union attorney Nathan Freed Wessler, who argued the case. “The Supreme Court has given privacy law an update that it has badly needed for many years.”
Roberts portrays the decision as narrow, but it has big implications, appellate lawyer JP Schnapper-Casteras told us. “The logic and language of his opinion surely have broader ramifications for digital privacy and tracking,” he said. “It sheds light on how the court is starting to conceptualize these sorts of technological issues and also will influence how the courts of appeal implement this ruling further in other scenarios involving cellphones and beyond.”
Privacy groups applauded. “The Court’s reasoning in this case will be applied to other collections of data, making the Fourth Amendment much more relevant to our digital lives,” said Greg Nojeim, director of the Center for Democracy & Technology’s Freedom, Security & Technology Project. “This is a landmark victory for digital privacy, and hopefully marks the beginning of the end of the ‘third-party doctrine,’ which says that the Fourth Amendment doesn’t protect our privacy when it comes to the records of our activities that companies collect about us,” said Kevin Bankston, director of New America’s Open Technology Institute.
“This decision will provide users with the confidence that the sensitive location data they share with innovative digital devices and services will only be disclosed to law enforcement with a warrant based on probable cause,” said Computer & Communications Industry Association President Ed Black. “While the Court’s decision is narrow, its reasoning could have significant impact on the future application of the Fourth Amendment’s protections to digital data.”
Sen. Edward Markey, D-Mass., also considered the case important. “Where we go or where we have been is sensitive information that should only be revealed to law enforcement with a warrant,” Markey said. “The Court’s decision takes a big step forward for privacy by saying the government can’t track a person’s past movements through the records of their cell phone signal without probable cause.”
“As more and more of our sensitive information is held by third parties, this decision is a step forward in ensuring that our most private information -- our communications, our photos, our financial and medical records, our every location -- receives the Fourth Amendment protection it deserves,” said Sen. Patrick Leahy, D-Vt. Leahy said Congress must make sure the law keeps up as technology advances and should approve legislation he sponsored updating the Electronic Communications Privacy Act. Sen. Ron Wyden, D-Ore., said the "court’s recognition that digital devices can generate ‘near-perfect surveillance’ of a person’s private life is a validation of the vital protections against unreasonable search and seizure provided by our Constitution."