Supreme Court to Tackle Digital Privacy Rights in Closely Watched Case
The Supreme Court takes up a landmark digital privacy case Wednesday with implications for protections for cloud-based data, lawyers told us. Privacy advocates told us hope the court will rule warrants must be obtained for government to access cellphone location information. Law enforcement access is at the heart of Carpenter v. U.S. challenging whether the government’s search of convicted criminal Timothy Carpenter's cellphone records, relying on a law predating modern digital capabilities, was a Fourth Amendment violation (see 1706050006).
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“The court’s decision will say a lot about the scope of today’s Fourth Amendment protections,” said Greg Nojeim, who directs the Center for Democracy & Technology's Freedom, Security and Technology Project, at a CDT discussion Tuesday. "If law enforcement wanted to get access to information in a person’s desk drawer, they would need a warrant. But if the government wants certain digital data, they can access it." The government relied upon the “third-party doctrine,” developed in the 1970s that says a user can't have a reasonable expectation of privacy when information is voluntarily given to a third party. CDT was among civil society groups and tech firms filing amicus briefs in Carpenter, arguing the Fourth Amendment fully protects cellsite location information (see 1708140064).
The court appears keenly interested in reviewing how the Fourth Amendment should be interpreted, lawyers said, citing key cases where justices flagged the issue. The court's ruling in 2014 Riley v. California has implications for Carpenter (see 1404300058), said American Civil Liberties Union staff attorney Nathan Freed Wessler. Chief Justice John Roberts wrote Riley in a unanimous decision that the government violated the Fourth Amendment rights of a person whose cellphone was searched without a warrant during an arrest. In 2012's US v. Jones, the court unanimously ruled use of a GPS tracking device on the car of a suspect constituted a Fourth Amendment search, though the court was split on whether the search was legal.
In Jones, Justice Sonia Sotomayor raised the core issue of what privacy protections can be expected when dealing with third-party data that consumers may not realize they voluntarily released when using a device. “This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks,” Sotomayor said in her concurring opinion. "Sotomayor is right. The Supreme Court should develop a modern Fourth Amendment doctrine," opined Stephen Sachs in The Washington Post. Sachs, a former Maryland attorney general who argued and won 1979's Smith v. Maryland that helped establish the third-party doctrine, said Carpenter gives the court the opportunity to update the law.
"Part of the concern here is really how much information do I want the government to be able to get about me without going through the process that the Constitution requires," said Mayer Brown's Andrew Pincus, author of CDT's Carpenter amicus brief. In Riley, the court said looking at contents of a cellphone isn't same as the contents of an address book, Pincus said at CDT's panel: "That’s the question the court will be addressing tomorrow."
“People should have a reasonable expectation of privacy” when data is collected over a longer period of time, ACLU's Wessler said. This's a key issue here that challenges the government’s collection of data covering 127 days. “The court has to strike a balance between privacy and law enforcement goals,” Wessler said. ACLU suggested 24-hours is a reasonable limit for allowing legal access to third-party data.
The ruling in Carpenter will “almost certainly leave room for Congress to intervene,” blogged CDT Legal Fellow Mana Azarmi. Sen. Ron Wyden, D-Ore., told CDT he hopes the case will provide a new incentive congressional involvement. Building surveillance records used to be expensive and time-consuming, and government was forced to think carefully about the costs and benefits, Wyden said. Today, it’s “easy and cheap,” he said, which is why he wants "a simple clear rule" that would require the government to get a warrant to track an American's location as suggested in the Geolocational Privacy and Surveillance Act (S-395). CDT's Michelle Richardson, deputy director of the Freedom, Security and Technology project, said "Congress needs to step in" regardless because much broader privacy issues are at stake.