In 2011, the FBI was investigating a series of armed robberies at Radio Shack and T-Mobile stores in and around Detroit. FBI agents suspected that Timothy Carpenter was working as a flight driver for the thieves. They searched for location data on Carpenter's cell phone, which showed that Carpenter was close to each of the thefts when they occurred. Carpenter argued in court that following his location using his cell phone was unconstitutional. The government backed down with a bold legal claim. He argued that he can use cell phones to track the location of anyone he wants at any time, without violating the Constitution.
The Court of Appeals for the Sixth Circuit agreed with the government. He concluded that the Fourth Amendment guarantee requirement did not apply to cell phone tracking. Because Carpenter does not have privacy or ownership rights in the location data your phone transmits, and because the data does not reveal the content of Carpenter's phone calls, the government can obtain it without a court order. Without options, Carpenter filed a petition in the Supreme Court.
On November 29, the Supreme Court will hear the case of Carpenter v. United States . Court observers have had trouble predicting how the Court will govern. Cases of government surveillance are rarely divided into party lines, and the case is located at the intersection of several conflicting precedents. Judge Samuel Alito, a potentially negative vote, has expressed serious concerns about location tracking without a court order, but tends to favor enforcement of the law in most cases. Judge Neil Gorsuch, another possible decisive vote, is new to the Court and his position is inherently difficult to foresee.
What is clear to legal badysts and observers of the Court is that Carpenter is a very important surveillance case, one of the largest in the last 40 years. And, its implications for the privacy of citizens go beyond simple cell phone tracking. The Carpenter case has received some media attention, but unless you are an expert in surveillance laws, you may not be aware of the enormous potential impact of the Court's decision. It is not an exaggeration to say that it could determine the future of our Internet privacy and the age of cell phones.
Why is this case so important?
First, you can determine if any of our digital information – emails, Google searches, contact lists, etc. – receives constitutional protection against government surveillance. Normally, the Fourth Amendment would require the government to have probable cause and a search warrant before examining our private data. But there are exceptions to this general rule. An exception is known as the "third-party doctrine," which states that personal information exposed to a "third party" such as an employee of a telephone company or a teller of a bank is no longer protected by the Fourth Amendment.
This doctrine was controversial in the pre-Internet era, when it eliminated Fourth Amendment protection for things like bank records and dialed phone numbers. The Supreme Court has not applied it directly in a case since 1979. Today it is an open question if the doctrine of third parties still works. What is at stake now is also much higher. The variety and amount of personal electronic data have increased exponentially in recent decades. Almost all forms of electronic information, from our emails to our Google searches and our contact lists to the websites we visit, are exposed to third parties. So, if the Supreme Court upholds the doctrine of third parties in the Carpenter case, all this information may be left unprotected by the Fourth Amendment. In other words, the Carpenter case is much more than just cell phones. It is about whether the government can collect personal and often intimate details about any citizen, without limits of the Fourth Amendment.
Second, the Carpenter case is important because location tracking has the potential to be incredibly invasive of our privacy. We carry our cell phones with us practically wherever we go, and the ability to track our phones is essentially the ability to track our movements. Monitoring everywhere a person goes, day after day, can reveal intimate details about that person's life. As one federal appeals court said: "One person who knows all the trips of another can deduct whether he is a weekly church attendant, a heavy drinker, a regular at the gym, an unfaithful husband, an outpatient receiving medical treatment. , an badociate of particular individuals or political groups, and not just one of those facts about a person, but all those facts. " Allowing the government to collect information on the movements of all citizens without constitutional restrictions would drastically expand the power of the government to monitor US citizens.
be sure, the Constitution is not the only game in the city when it comes to regulating the behavior of the police. Under current law, the police may be somewhat limited in their ability to obtain cell phone location data. If government agents wish to obtain location data by themselves, the Stored Communications Act requires them to obtain a court order. An order can be issued when the police prove that the searched records are "relevant" and "material" for a criminal investigation. This provides some restriction on location monitoring, but courts have found that this standard is much lower than the probable cause required for an order. Beyond the lower standard, legal privacy protections are not as permanent or as strong as constitutional protection. Congress could repeal the Stored Communications Act by a majority vote, and a major terrorist attack could lead to a dramatic expansion of the government's legal oversight powers, as it did on September 11. Legal protections without constitutional support have also failed to protect privacy before. The era of unrestricted listening by the government occurred despite the fact that such conduct was prohibited by law, and ended only after the Supreme Court declared the hearing unconstitutional.
In fact, these issues are important because the government has a long history of abuse of its vigilance powers when those powers are left unchecked. In 1928, the Supreme Court held that the Fourth Amendment did not apply to most government wiretapping, a decision that was not reversed until 1967. In the intervening years, the FBI recorded hundreds of thousands of private conversations. Federal agents recorded calls between lawyers and their clients, played the telephones of journalists and congressmen, and recorded the personal conversations of the Supreme Court justices. The FBI used these recordings to monitor political groups, influence judicial appointments, threaten civil rights leaders and intimidate or discredit members of Congress who investigate their activities. Infamously, the FBI used wiretaps to try to discredit and intimidate Martin Luther King, at one point they tried to take King to commit suicide.
Abuses of supervisory power are not a thing of the past either. In recent years, federal and local law enforcement officers have used surveillance powers to spy on their spouses or love interests, gather personal information about critical bloggers and online commentators, spy on defense lawyers in criminal trials, obtain private emails of activist politicians, and to identify and monitor anti-Trump protesters. These incidents are probably the tip of a much larger iceberg, since surveillance abuses often do not come to light for decades, if they ever do. Allowing the government to control indefinitely the movements of any or all US citizens would expand the government's surveillance powers to an extent not seen since the age of wiretapping. Allowing you to collect all the electronic information exposed to third parties would give you even more power and the ability to observe and badyze virtually every aspect of our lives. If history is a guide, these extraordinary powers would lead to extraordinary abuses.