US Supreme Court considers privacy — or not — of your location data

The U.S. Supreme Court heard arguments last week on a case that could determine whether authorities can search cellphone location data without a warrant.

In Carpenter v. U.S., the Court will eventually rule on whether the Fourth Amendment of the U.S. Constitution’s Bill of Rights, enacted in 1791 to safeguard citizens’ rights against unreasonable searches and seizures, extends to cover personal cellphone records tracking user location.

The case began when police used records, obtained from a phone company and drawing on cell-tower location, to show that an individual’s cellphone was used in the vicinity of several armed robberies in Michigan and Ohio in 2010 and 2011.

The appellants contend that the government had violated the Fourth Amendment when it collected their cellphone location records without a warrant. A federal appeals court ruled against the appeal, finding the Fourth Amendment doesn’t “yet” extend to cellphone location data.

That court distinguished between the “content” of a communication and the “information necessary to send it.” The government can’t read letters or emails or listen to wiretapped conversation without a warrant, but it is entitled to the metadata used to send such content — in this case the phone company data showing in which tower’s cell area the phone was activated.

“The business records here fall on the unprotected side of this line. Those records say nothing about the content of any calls,” the court ruled. “Instead the records include routing information, which the wireless providers gathered in the ordinary course of business.”

The Supreme Court, in hearing the appeal on this decision, is expected to review — and possibly revise — its heretofore opinion that when users share information with a third party, such as a bank or telephone company, they lose the expectation that it will remain private. At question is whether cellphones have activated a new era of privacy expectations, in essence, whether legal doctrine needs to be subject to updates for the digital age.

One tenet that no one questions is that cell phone users have no idea to what extent their phone companies know where they go and how long they stay there. Whether they care or not, or whether they are willing to sacrifice some amount of privacy for the convenience of cell phone access, remains to be seen. The limits for this have been explored but never completely settled, in controversies around Facebook’s (and others’) access to and use of customer data and profiles.

Apple, Facebook, Google and Verizon have all filed an amicus (“friend of the court”) brief in Carpenter v. U.S. The tech gargantua seem to want, on the one hand, to discourage the possibility of government and law enforcement being able to access location data without a warrant, while also maintaining a clear and unencumbered route for themselves to use it. They argue that “Fourth Amendment doctrine must adapt to the changing realities of the digital era” and that “rigid analog-era rules should yield to consideration of reasonable expectations of privacy in the digital age.”

After a related 2012 Supreme Court decision that attaching a GPS tracker to a car without a search warrant violated the Fourth Amendment, Justice Sonia Sotomayor wrote that the so-called third-party doctrine was “ill suited to the digital age” and that privacy case law should adapt to changes in society’s views that are occurring thanks to smartphones and other technology.

For a summary of the arguments presented to the Court on November 29 in Carpenter v. U.S., see the SCOTUS blog here. Further developments in the case will appear on this page, and viewers may sign up for push updates as well.

In 2008, GPS World published an editorial on this subject, in the guise of a parodized future film noir scenario, “The Call Tease Factor.” An expandable image appears at left. The essay opined that “Government agencies and police routinely tracked cell users’ location without a warrant or court oversight. . . . Challenges had faltered, and no one seemed to notice any more, or care much.”

“Privacy, as least as far as location, no longer existed.”