BIG BROTHER WANTS TO WATCH YOU
·Updated:
·

On Wednesday, the Supreme Court heard oral argument in Carpenter v US, a case that could prove pivotal in protecting or eroding the privacy rights that apply to Americans' data. 

While the Court most likely won't release its decision on the Fourth Amendment dispute until June, oral arguments may have given insight into what the justices are thinking about. Here's what you need to know about the case, and the oral arguments. 

The Case

The case revolves around Timothy Carpenter, who was accused of orchestrating a series of robberies in Ohio and Michigan. The FBI used the Stored Communications Act of 1986 to secure the cell phone records, including location data, on 16 different numbers, including Carpenter's. The records, which showed which cell phone towers Carpenter was connected to at what time, were used to connect Carpenter to the crimes. He was sentenced to nearly 116 years in prison, but is disputing the decision based on the use of the cell phone location records.

The Stored Communications Act allows law-enforcement to request cell phone records without a search warrant. Instead, investigators simply need to establish that there "are reasonable grounds to believe" that the records "are relevant and material to an ongoing criminal investigation." 

The Fourth Amendment 

The "relevant and material" standard departs from the commonly known "probable cause" standard for search and seizure found in the Fourth Amendment, under which the government must be able to establish that there is probable cause for a reasonable person to believe "that a crime was committed at the place to be searched, or that evidence of a crime exists at the location."

Under the Fourth Amendment, a search almost always requires a warrant from a judge.

The Third Party Doctrine

The government argues that cellphone location data, the kind it obtained on Timothy Carpenter, is not protected by the Fourth Amendment because it's data that's been voluntarily provided to the service provider through a the customer-provider contract. 

The idea that the Fourth Amendment doesn't apply to information that's voluntarily provided to a third party is called the "third-party doctrine," and it's grounded in two foundational Supreme Court cases. 

The first is US v. Miller:

[I]n United States v. Miller, the Supreme Court ruled that the bank records of a man accused of running an illegal whiskey-distilling operation were not obtained in violation of the Fourth Amendment, even though law-enforcement officials did not have a warrant, because the bank records contained "only information voluntarily conveyed to the banks and exposed to their employees in the ordinary course of business." 

The second is Smith v. Maryland:

[I]n Smith v. Maryland, the justices ruled that no Fourth Amendment violation had occurred when, without a warrant and at the request of the police, the phone company installed a device to record all of the phone numbers that a robbery suspect called from his home, leading to his arrest.

[SCOTUSblog]

A federal appeals court agreed with this argument before the Supreme Court took up the case.

What's A Search?

Carpenter argues that the government's use of the records qualifies as "a search" under the Fourth Amendment. Despite his contract, Carpenter says that he didn't affirmatively provide the information to his provider by actively communicating, rather, that data was gathered while the phone was passively on. Now, his lawyer argued to the Court, your private and public location, which are expected to be private information, is readily available to the government through data such as phone records

Additionally, Carpenter argues that in contemporary society, mobile phone use is ubiquitous even in places where people expect privacy, such as their home, suggesting that privacy rights should be extended to mobile phone data.

If the Supreme Court were to agree with Carpenter, it could expand the Fourth Amendment requirement for probable cause to digital information shared with internet and phone providers, but also platforms such as Facebook. If it sides with the government, law enforcement may continue to use certain types of data under the law, and may continue to push the boundaries of constitutes as relevant and material to an ongoing criminal investigation.

Oral Arguments And Recent Cases Provide Hope For Digital Privacy

While oral arguments aren't always an indicator of how the Court will decide a matter, Wednesday's arguments seemed to indicate that most of the justices are interested in expanding privacy rights.

Conservative Chief Justice Roberts suggested that a 2014 case, Riley v. California, that ruled that law-enforcement officers need a search warrant to access an individual's cell phone, creates precedent for expanding digital privacy rights. The case, he said, "emphasized that you really don't have a choice these days if you want to have a cell phone."

The new conservative justice, Neil Gorsuch, also indicated that he was sympathetic with Carpenter's argument. In true Originalist fashion, Gorsuch referred back to the revolutionary era, arguing that the framers would not have included "easy access to individuals' location information" in the Constitution, especially if you consider data a "property interest." 

Liberal Justice Sonia Sotomayor, waxed poetic about the omnipresence of technology: "It can ping you in the most intimate details of your life. Presumably at some point even in a dressing room as you're undressing… a provider could turn on my cell phone and listen to my conversations." Sotomayor previously wrote that the third-party doctrine is "ill suited to the digital age" while concurring in United States v. Jones, where the Court ruled that digital tracking devices attached to cars constitute a "search."

Another liberal justice, Elena Kagan, brought up the same case, saying there were "obvious similarities" — a device that allows for constant surveillance via cellular location.

Justice Kennedy, who usually plays the swing vote on the Court, seemed to sympathize with the government, saying that "everybody" must know how much data cell phone providers have "if I know it."

The other justices appeared to send mixed signals.

Worst Case Scenario

If oral arguments are any indication, it seems like the Court may be set to expand privacy protections to location-data that can be collected from cell phones, but what if they don't?

A constitutional law expert explains to Quartz, that allowing the previous ruling in Carpenter to stand would provide cell phone users with no option of opting out of potential constant surveillance:

A service provider's privacy policy wouldn't be able to offer protection. Such policies are only effective with respect to other private parties but rendered "irrelevant" with respect to the government, explains Andy Pincus, a Washington DC-based Supreme Court and federal and state appellate litigator at law firm Mayer Brown, who filed an amicus brief in support of Carpenter for The Center for Democracy and Technology. 

[Quartz]

The most extreme scenario would be the hardening of the third-party doctrine, expanding it to all data shared with a third party. This would open potential surveillance to all types of data, such as email, pictures, or any other information your phone transmits.

Brenda Sharton told Quartz that this outcome is extremely unlikely, however, given that the Court tends to issue very specific, rather than broad rulings: "They tend to rule on something in a narrow way because they want to maintain some flexibility down the road."

<p>Benjamin Goggin is the News Editor at Digg.&nbsp;</p>

Want more stories like this?

Every day we send an email with the top stories from Digg.

Subscribe