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How the Supreme Court could redefine privacy in the digital age

POSTED: December 2, 2017 8:19 a.m.
Sara Israelsen-Hartley/

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Anyone carrying a cellphone could be tracked by the government without their knowledge and without permission — which is why legal scholars are encouraging the Supreme Court to set a few more rules regarding privacy in a digital age.

A case argued Wednesday before the high court, Carpenter v. United States, is a "once-in-a-generation" case, asking whether it was constitutional for law enforcement to research the location of a suspected armed robber for 127 days through cellphone tower data without a warrant.

The case brings up questions about expectations of privacy for personal data handled by third parties, how police can access that data, and what it means to be searched — questions that some experts worry are beyond the power of digitally naive case law to answer, including the longstanding Fourth Amendment, which protects people from unreasonable government search and seizure.

While the high court's ruling isn't expected until June, several justices expressed concern Wednesday about the idea of broad, warrantless government gathering of personal information.

"The Constitution protects the rights of people to be secure," said Justice Sonia Sotomayor. "Isn't it a fundamental concept … that would include the government searching for information about your location every second of the day?"

Whether the Supreme Court sides with the convicted robber or the government, experts say either decision will show that technology is continuing to shape everything about society — including its laws.

"It could be a landmark decision," said James Dempsey, executive director of the Berkeley Center for Law & Technology. "It's clearly (a case) that implicates pretty much every person in the country … who carries with them this tracking device in the form of a cellphone. So no matter (the decision), it's going to be an extremely significant case."

Case details

The robber in question is Timothy Ivory Carpenter and his half-brother Timothy Michael Sanders, who prosecutors said were the ringleaders in a string of armed robberies in Detroit beginning in December 2010.

Prosecutors said Carpenter and Sanders watched from a get-away car across the street as their crew robbed at least nine different Radio Shacks and T-Mobile stores by walking in with guns drawn, herding employees and customers to the back and demanding that employees "fill the robbers' bags with new smartphones," according to an earlier 6th Circuit Court ruling.

Despite fellow conspirators confessing the group's crimes to the FBI, prosecutors relied heavily on historical location data from cellphone companies that placed Carpenter's cellphone no more than two miles away from the stores on the dates they were robbed.

Carpenter was convicted of numerous counts of robbery and sentenced to 116 years in prison, Sanders for 14 years, but both are now appealing their convictions, arguing that police needed a warrant for their cellphone data. (No matter the ruling, because of legal issues unrelated to this appeal to the Supreme Court, it's likely Carpenter will spend the rest of his life behind bars.)

"What's the role of the Fourth Amendment in the world of the internet, in a world of networks, in a world of lots of cameras out there collecting records, this big data world? What's the role of the courts? That's what it's really about," Fourth Amendment expert Orin Kerr said in a podcast following arguments.

Michael Dreeben, deputy solicitor general, argued for the United States Wednesday that despite technological advances, a 1979 Supreme Court decision still applies to Carpenter's case.

That decision said phone records — numbers dialed and when — were different than the actual phone conversations, and because an individual had shared their information with the phone company — a third party — they had no right to expect privacy, which meant police could ask for the information without a warrant.

Yet that case was decided decades ago, argued Nathan F. Wessler, an American Civil Liberties Union attorney representing Carpenter, and involved one single, landline phone; whereas today, the technology has exploded, and so much private data now rest in the hands of third-party carriers, like a cellphone provider.

"The court (in 1979) could not have imagined the technological landscape today," Wessler argued Wednesday, adding that lower court decisions were "virtually begging this court to provide guidance for how to protect these sensitive digital records."

The problem is there's a clash between prior Supreme Court decisions, says Kerr. The 1979 decision said data shared with a third party is unprotected and doesn't require a warrant. However, two more recent decisions by the Supreme Court provide a bit more nuance.

One of those rulings found that police must have a warrant to search the cellphones of people they arrest. In another case, law enforcement had attached a GPS monitoring device to a suspect's car for 28 days, and the court found the "evidence collection over time eventually crosses some line and becomes a search," requiring a warrant, said Kerr.

Possible solutions

During Wednesday's hearing, the justices discussed the idea of drawing clear lines, and creating an exception to the court's third-party doctrine for cellphone location records, similar to the status enjoyed by medical records, which are held by the hospital, but still require a police warrant to search.

Such a line would set cellphone location data apart from bank records, insurance records or credit card records — data which the third-party doctrine was created to deal with, and are much more "transactional" in nature, and part of "functioning in commerce," says Dempsey.

"Because the (third-party) doctrine has become so broad, that's both the strength and the weakness of (it)," said Dempsey. "The fact that it encompasses so much makes it something the government sees as absolutely essential and privacy and commercial interest … as absolutely a problem."

Others have suggested drawing lines based how much information is gathered.

Wessler argued that perhaps setting a time limit might be helpful — a 24-hour period of tracking could be warrant free, but anything longer than that — like 127 days — would require a warrant.

Justice Ruth Bader Ginsburg wondered about the practicality of such a time frame, especially if a case involved multiple robberies, like Carpenter's.

"So we can't get it for eight, but we can get it for the one?" she asked Wednesday. "If it's reasonable for one robbery one day, why wouldn't it be reasonable — equally reasonable for each other robbery?"

Matthew Tokson, an associate professor at the University of Utah's S.J. Quinney College of Law, said he believes it's better to have a hard and fast rule that anytime police want to look at historical cellphone location data, rather than real-time tracking, the Fourth Amendment applies, and a warrant is needed.

"If they can see everywhere you've been for the past five years, that's a really big privacy violation," he said.

Tokson is worried about broad government surveillance, like the kind from the 1930s, ’40s, and ’50s, when government wiretapping by then FBI Director J. Edgar Hoover was rampant and even used against civil rights leader Martin Luther King Jr.

"The abuse of such a vast surveillance power is almost inevitable," Tokson said. "Not only criminals will be targeted if we give the government unlimited vast surveillance powers."

Yet it may often seem hypocritical for individuals who post everything about themselves on Facebook or Instagram to then clammor for privacy about their cellphone location data. However, there's actually no tension in those situations, says Christopher Slobogin, a professor of law at Vanderbilt University.

People make implicit contracts with their phone company, saying, in essence: "'You get our location data to help us know our location and what’s around our location,'" he said. "You don’t get this data in order to give it to the government.' "

Slobogin isn't opposed to the government getting cell tower information if there's a legitimate need, and he doesn't want to tie law enforcement's hands, which is why he favors a sort of proportionality idea, where the greater the intrusion, the more proof the police should have to show.

Police protocol

In general, the standard to get a warrant is probable cause — meaning an officer thinks it's more likely than not that something criminal is happening. From there, he or she can get a warrant for an arrest or search.

A lesser standard is reasonable suspicion, where the officer, based on his or her experience and training, is concerned and can point to activity or behavior that looks suspicious. They can ask someone to stop and wait for a minute while they check things out, says Bill Johnson, executive director for the National Association of Police Organizations.

An even lesser standard is an administrative warrant, or a subpoena, where based on laws and statues, officers or even the gas company can do a routine inspection or get some general information without a warrant.

"The safeguard for society is not so much the level (of proof) as the fact that the warrant itself has to be issued by a neutral … judge or magistrate — someone who's not part of the police department," says Johnson. "It's an outside party looking at it and applying the standard."

While cell tower data is helpful in investigations, how often it's used by police departments is more a question of resources than of legal ability to get it, said Johnson.

Most cases are solved by an eye-witness or gas station surveillance camera videos, he said, because many police departments lack time or resources to get cell tower data.

Should the court's ruling require offers to get a warrant each time they need cellphone location data, it might "chill" officers' inclination to seek those warrants, says Johnson, though it might still be used for the most serious cases — missing persons, abducted child, a victim's location, etc.

"I don't think there's a question that … prosecutors followed the law as it existed," Johnson said. "I think the question is what Carpenter's attorney is saying … 'even so, the law was unconstitutional.'"
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