- The Washington Times
Tuesday, August 15, 2017

Some of the world’s biggest tech companies pleaded with the Supreme Court this week to update decades-old precedent governing telephones, saying that cell-tracking technology threatens Americans’ most fundamental privacy rights.

Apple, Microsoft, Google, Twitter, Facebook, Verizon and other major players in the modern digital economy asked the justices to rule that the Fourth Amendment should require police to get a warrant before they can demand cellphone location data.

“Fourth Amendment doctrine must adapt to this new reality,” the companies said in their brief.

The high court is slated to hear an appeal this fall from Timothy Carpenter, who was convicted for a string of robberies after police obtained his cell location data from a third-party telecom.

The case will test how far the justices are ready to go to update privacy interpretations in the digital world, following a 2012 case in which the court ruled GPS trackers counted as searches under the Fourth Amendment, and a 2014 case in which the justices said police can’t browse through suspects’ cellphones without getting a warrant.

The tech companies said in their amicus brief that Americans may not be aware that while their private communications are protected by the Fourth Amendment, other sensitive data housed by third parties like internet purchase transactions and location records are not.

“Although [the companies] do not take a position on the outcome of this case, they believe the Court should refine the application of certain Fourth Amendment doctrines to ensure that the law realistically engages with Internet-based technologies and with people’s expectations of privacy in their digital data,” the groups said.

Andrew Ferguson, a law professor at the University of the District of Columbia who also filed an amicus brief on behalf of legal experts across the nation, said it’s important for companies with a vested interest in the outcome of the case to inform the court of the potential consequences for business and customers.

“It says something pretty powerful that all of these various amici are coming in at the same time [and it] sends a signal of just how important this case is,” said Mr. Ferguson.

The Justice Department has urged the court to duck the big privacy questions, saying Carpenter would have been convicted based on other evidence anyway.

But if the court does want to decide, the federal government’s lawyers sided with police, saying business records belong to the company, not the customer, so they can’t be shielded.

“A person has no Fourth Amendment interest in records created by a communications-service provider in the ordinary course of business that pertain to the individual’s transactions with the service provider,” the government argued in briefs to the court. “Petitioner lacks any subjective expectation of privacy in phone-company records of historical cell-site data because they are business records.”

Lower courts have split over whether data held by a third party is protected, and Selina MacLaren, an attorney for Reporters Committee for Freedom of the Press, said there’s a lot of excitement surrounding Carpenter’s case.

She said the case could even affect the way reporters go about their jobs.

“This type of surveillance threatens to reveal where journalists go and where their sources go,” she said.

David Keating, president of the Center for Competitive Politics, said he feared governments trying to monitor Americans engaged in other First Amendment activities such as freedom of association.

“In many respects, this is potentially a lot more serious than all the concern about the NSA telephone call records and where they’ve analyzed calls being made overseas and such, because this is tracking movements of U.S. citizens in the United States and the government being able to get that information without having to get a warrant,” said Mr. Keating.

Curt Levey, president of the Committee for Justice, which signed onto another brief filed in the case, said third-party data goes well beyond cell locations to include all sorts of data internet companies hold, such as online purchases.

“This is not just about cellphones,” said Mr. Levey. “It’s virtually everything in your home.”

If the high court were to find in favor of Carpenter, the justices could reverse his conviction entirely and he could walk free, or they could send the case back to the lower court for consideration, and Carpenter could be convicted based on other evidence not including his location records.


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