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article imageU.S. Supreme Court rules police need warrant to track cell phones

By Ken Hanly     Jun 24, 2018 in Technology
Washington - The U.S. Supreme Court ruled on Friday that police are required to obtain a search warrant before they can gain information to any individual's cell phone location.
Police were routinely getting the information with no warrant
The ruling will put new limits on police ability to use the increasing amount of data that private companies are amassing about individuals. Not surprisingly the vote was close 5 to 4.
Cellphone providers keep location information for customers in order to help improve their service. Up until now the legal view has been that if an individual voluntarily shares his information with a third party, such as by signing up for cell phone service, then police are able to access that information without a search warrant.
However, that view was challenged when Chief Justice John Roberts wrote the decision for the court majority.
The Supreme Court's view
Roberts wrote that the cellphone location information is a nearly perfect tool for government surveillance of individual behavior. He said it was analogous to a person wearing an electronic monitoring bracelet. He maintained that the authors of the US Constitution would have held that an individual would have an interest in his or her day-to-day, hour-to-hour and even minute-to-minute records of where he or she was.
The case, Carpenter versus the US, was brought by Timothy Carpenter, who had been prosecuted as a ringleader in a series of armed robberies in both Michigan and Ohio. Cell tower information proved important evidence in his conviction. He appealed and contended that the police had unconstitutionally invaded his privacy by not obtaining a search warrant before accessing his cell phone information.
The court ruled that the routine court order that police had obtained in the case required only a showing that the police were after relevant information. A search warrant would require a far higher standard and was appropriate as Carpenter had a privacy interest that made the search warrant necessary.
Carol Rose, executive director of the American Civil Liberties Union of Massachusetts said: “This is a groundbreaking victory for privacy rights in the digital age.” She also claimed it provided a framework for protecting other digital information.
Decision discussed by some academics
Orin Kerr, a fourth amendment scholar the University of California said: "Big Brother is coming and we need to stop it. That seems to be the big takeaway from the opinion. It almost reflects an anxiety about technology thwarting privacy. If we don't stop the government here, what will they be able to do?"
Jamee Jaffer, director of the Knight First Amendment Institute at Columbia University claimed: "This is a landmark privacy case. It's also a very significant case for First Amendment freedoms — that is, for the freedoms of speech and the press and association. A government that can track your every movement without a warrant is a government that can freely monitor activist political associations, or monitor government employees' contacts with the press." Jaffer admitted that the decision could very well create practical problems.
Majority author considers decision narrow
Chief Justice Roberts considered the decision to be a narrow one. The ruling does not stop the routine use of subpoenas to obtain financial, bank, and business records. In emergency circumstances such as chasing a fleeing subject, or in a kidnapping or imminent danger the cell phone info could still be legally obtained.
The decision does not call into question other techniques that could be considered invasions of privacy such as the use of security cameras. It only ensures that the progress of technology does not erode fourth amendment guarantees of privacy.
Roberts was joined in the majority by liberal justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan. The four other conservatives judges Anthony Kennedy, Clarence Thomas, Samuel Alto and Neil Gorsuch all dissented and even wrote separately to describe their reasons for disagreeing.
Dissenting opinions
Kennedy pointed out that the decision was in conflict with previous decisions about records held by third parties. In order to obtain a bank record, telephone records and credit card statements as part of an investigation the government can use a subpoena and does not need a warrant. He claimed it made no sense to make an exception in this case. He claimed that “cell-site records are uniquely suited to help the government develop probable cause to apprehend some of the nation’s most dangerous criminals: serial killers, rapists, arsonists, robbers, and so forth.”
Kennedy noted also that the records are created, kept, and owned not by Carpenter but by cell phone service providers who even sell the information to third parties. Carpenter cannot claim to own or possess the records and has no control over them.
Alito claimed that if the ruling was meant to protect privacy in the digital age it was misdirected: “Some of the greatest threats to individual privacy may come from powerful private companies that collect and sometimes misuse vast quantities of data about the lives of ordinary Americans. If today’s decision encourages the public to think that this court can protect them from this looming threat to their privacy, the decision will mislead as well as disrupt.”
Alito concluded: "The Court's reasoning fractures two fundamental pillars of Fourth Amendment law, and in doing so, it guarantees a blizzard of litigation while threatening many legitimate and valuable investigative practices upon which law enforcement has rightfully come to rely."
Alito also questioned Carpenter's ownership of the cell phone data. He noted that service providers routinely charge cellphone users a fee in order to inspect their own records. He said it was strange that if he were the owner of the records he would be required to pay to see them.
Clarence Thomas too argued that the records did not belong to Carpenter whereas the fourth amendment guaranteed an individual only the right to be secure from searches of their person, houses, papers, and effects. These records belonged to the service provider.
The decision will have no effect on the ability of private companies to amass use and sell their information. The Fourth Amendment applies only to government actions not private conduct.
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