According to the ACLU, the Supreme Court has taken on a case that will decide whether police in the United States needs a warrant to get your cell phone’s location records from your wireless carrier.
“It’s Just Metadata”
As the U.S. government has said many times since Edward Snowden’s revelations, data such as cell phone call and text records, IP addresses, and even location data is not “content,” but “just metadata.” As such, it’s not important and you shouldn’t worry about the government’s bulk collection of it.
Perhaps the first counter-argument to that notion is that if it wasn’t important, the police and the government would have no need for it. However, going by all the intelligence programs that have been implemented based on metadata and the police’s hidden use of cell tower simulators, it’s quite obvious that the government considers metadata quite important. That means you probably should, too.
Third-Party Doctrine
Up until now, the government has gotten away with requesting data--especially metadata--from online service companies and wireless carriers because a of few-decades-old legal theory called the “Third-Party Doctrine." This theory started with the Supreme Court ruling in the Smith vs. Maryland case in 1979.
The third-party doctrine says that if you give your data to third parties, then you no longer have an expectation of privacy. Much of our data is stored in the cloud these days, including our photos, but also GPS location and information about what content we read online, because of ad tracking. That gives the police the ability to get all of that data you have stored elsewhere without serving you (or potentially even the company holding the data) a warrant.
One silver lining to the third-party doctrine is that the data must be given “voluntarily,” and it’s at least debatable whether or not people give their cell phone location to carriers “voluntarily.” In such situations, people don’t actually have a choice in the matter, other than not using a cell phone at all. However, in today’s times, such a thing may not be very practical, and a Supreme Court that’s mindful of modern society may also rule based on that critical context.
Warrantless Location History Collection
Back in 2011, during a robbery investigation in Detroit, police requested cell phone location records of one of the suspects, Timothy Carpenter, covering 127 days. The records also revealed 12,898 separate points of location data. According to the ACLU, police request such data from wireless carriers tens of thousands of times a year.
Carpenter was convicted based on this data, as both a lower court and the Sixth Circuit Court of Appeals ruled that no warrant was required to obtain that data.
ACLU argues that the cell phone location data can reveal many details about where someone has been, where they’re going, or even what they’re doing. Because of the accuracy of this information and the potential for misuse, the ACLU believes that the police should have to ask for a warrant before obtaining such data.
“Because cell phone location records can reveal countless private details of our lives, police should only be able to access them by getting a warrant based on probable cause,” said Nathan Freed Wessler, a staff attorney with the ACLU Speech, Privacy, and Technology Project. “The time has come for the Supreme Court to make clear that the longstanding protections of the Fourth Amendment apply with undiminished force to these kinds of sensitive digital records,” he added.
Over the past few years, the Supreme Court has taken the side of privacy and the Fourth Amendment and has ruled against law enforcement’s increasingly more daring tracking techniques. In 2012, the Supreme Court ruled unanimously that police need a warrant before they can place a GPS tracking device on a car. Two years later, it also ruled that police need a warrant to search a phone.
Multiple lower courts have ruled that no warrant is necessary to obtain cell phone location data because of the third-party doctrine and because the users “voluntarily” give such data away to carriers.
Because of the third-party doctrine and because many lower courts have already supported such theory, it’s not necessarily a given that the Supreme Court will once again take a pro-Fourth Amendment stance. However, if there’s one entity that can change a previous (possibly mistaken, or at least outdated) Supreme Court ruling, it’s the Supreme Court itself.
