Can your carrier disclose your cell phone records without a warrant?
Supreme Court to hear arguments today
Although not generally known to many cell phone owners, a cell phone creates a time-stamped map of everywhere the phone is carried. A cell phone automatically and repeatedly connects to the nearest cell phone tower, and from this ‘ping’, the cell phone company determines and records the cell phone user’s location.
From this data, a cell phone company can determine where a user shops, where they receive medical care, how often they frequent a church, what school they attend, whether they frequent a gun range, and which political rally they support.
The Supreme Court will hear arguments today on whether to allow such data to be disclosed to government or law enforcement without a warrant. The case, Carpenter v. United States, could result in a major re-interpretation of the Fourth Amendment right to privacy.
Carpenter v. United States
In 2011, the government requested the cellphone records of Timothy Carpenter from Carpenter’s cellphone carrier. Carpenter was suspected of criminal activity in Detroit and the government wished to establish his movements through location data captured when cellphone calls are placed. The phone company complied with the government’s request and turned over Carpenter’s cellphone records to law enforcement.
At trial, Carpenter argued that, without a warrant, the disclosure of his cellphone records and its related location information constituted a violation of his personal privacy. He appealed his case to the 6th Circuit Court of Appeals, which ruled that the government did not need a warrant to obtain consumer cellphone records. Carpenter’s lawyer and the American Civil Liberties Union then took the case to the Supreme Court. In June, the justices agreed to hear the case.
The U.S. Public Policy Council of the Association for Computing Machinery, the world’s largest computing professional society, called the case “a watershed moment” that has the potential to open the doors on “indiscriminate government surveillance”.
The Carpenter case is one of the most anticipated cases of the high court’s current session. The U.S. Public Policy Council of the Association for Computing Machinery, the world’s largest computing professional society, called the case “a watershed moment” that has the potential to open the doors on “indiscriminate government surveillance”.
The “third party doctrine” of data privacy
In 1976 the Supreme Court ruled that the bank records of a man accused of operating an illegal whisky distillery could be disclosed without a warrant because the man’s bank records contained “only information voluntarily conveyed to the banks” that was exposed to “employees in the ordinary course of business.” Disclosing such “third party” information, they ruled, did not violate the distiller’s Fourth Amendment right to privacy because the data was available to multiple employees at the bank.
Three years later, the justices ruled in another case that a recording device installed by a phone company, at the request of local law enforcement, did not violate a suspect’s Fourth Amendment right to privacy because other “third parties” could have overheard the suspect’s phone conversations.
Under the “third-party doctrine”, the federal government is not required to obtain a warrant before requesting cellphone location information.
These cases are examples of the “third-party doctrine”, an idea that the Fourth Amendment does not protect records or information that someone voluntarily shares with others.
Under the “third-party doctrine”, the federal government is not required to obtain a warrant before requesting cellphone location information. Essentially, when a customer gives information to a third-party, such as a phone company, the customer has surrendered their expectation of privacy by voluntarily handing such information over to that “third party”. According to the Supreme Court, that third party can do whatever it wants with that information, including giving it to the government.
In the Carpenter case before the court, the government is arguing that it should be entitled to cell phone information, without a warrant, because Americans who own cell phones “voluntarily” give up that information when their cell phone ‘pings’ a local cell tower and transmits their current location. However, Carpenter’s lawyers are arguing that, because all cell phones transmit that data “automatically” as part of their operation, the decision whether to disclose this information is not the user’s, but is an inherent part of the cell phone’s operation. The user does not have the choice to reveal or withhold their location information; their location is revealed to the cell phone carrier. The user’s only “voluntary” action is whether to own or use a cell phone.
Companies lining up to protect their consumer data
A number of the companies have filed briefs supporting the protection of consumer data gathered through cell phones. The companies include Apple, Google, Facebook, Microsoft, Twitter, and Verizon. Although not taking a position in the case, the company briefs urge the Supreme Court to strengthen the Fourth Amendment’s privacy protections for consumers.
Orrin Kerr, a George Washington University law professor and former clerk to Supreme Court Justice Anthony Kennedy, has called the Carpenter case “the biggest Fourth Amendment case that the court has had in at least five or six years, maybe longer.”
