Supreme Court justices express support for cellphone tracking privacy

By Allen Cone  |  Nov. 29, 2017 at 3:33 PM
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Nov. 29 (UPI) -- Members of the U.S. Supreme Court on Wednesday appeared to back digital privacy rights in a case involving the FBI's use of cellphone tracking data without a warrant.

But in the evolving age of digital technology, they struggled with how far to allow privacy.

"A cellphone can be pinged in your bedroom. It can be pinged at your doctor's office," Justice Sonia Sotomayor said during arguments. "I am not beyond the belief that someday a provider could turn on my cellphone and listen to my conversations."

The high court's case concerns the government acquisition of cellphone records against Timothy Carpenter that revealed his approximate location over 127 days, placing him in the area of armed robberies. Authorities did not have a warrant to obtain those records.

The American Civil Liberties Union, which is defending Carpenter, said in briefs that AT&T received 75,302 requests for cellphone location information from July 2015 to June 2016.

Conservatives justices, including Chief Justice John Roberts and the court's newest justice, Neil Gorsuch, questioned whether permitting police to get information from wireless carriers could be unconstitutional.

Justice Stephen Breyer said he was concerned about "highly personal" information being obtained.

Despite those concerns, consumers should realize their locations aren't private, Justice Anthony Kennedy said.

"I think everybody, almost everybody, knows that," Kennedy said. "If I know it, everybody does."

Several justices said Congress may decide rules on privacy instead of the courts.

With advanced technology, cellphones' location information has grown more precise.

Facebook, Google, Apple and other companies filed a brief in support of neither party but advise the court to "forgo reliance on" outmoded rules.

"The court should refine the application of certain Fourth Amendment doctrines to ensure that the law realistically engages with Internet-based technologies with people's expectations of privacy in their digital data," Seth Waxman, a lawyer for the companies, argued.

Carpenter is appealing his conviction for a series of armed robberies of Ohio and Michigan Radio Shack and T-Mobile stores in 2010 and 2011. The appeal is on the basis that Carpenter thinks the FBI violated his Fourth Amendment right against unreasonable search and seizure.

Specifically, Carpenter says the FBI should have needed a warrant to pull location data from his cellphone providers, MetroPCS and Sprint.

In 2014, Carpenter, 29, was sentenced in federal court to 116 years in prison for his role as a lookout in six robberies to obtain smartphones. Police used cellphone technology to link him to the robberies.

The government argued the Stored Communications Act of 1986 allows location data to be searched if the government believes it will be relevant to a criminal investigation.

In 2014, the high court unanimously said that a warrant was needed in most cases before searching a cellphone. In a 2012 Supreme Court ruling, attaching a GPS device to a vehicle and tracking its movements constituted a search under the Fourth Amendment.

Alito wrote in a concurring judgment for that case that "society's expectation has been that law enforcement agents and others would not -- and indeed, in the main, simply could not -- secretly monitor and catalog every single movement of an individual's car for a very long period."

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