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Jul 22 2017   10:22AM GMT

Supremes to Decide Cellphone Location Data Case

Sharon Fisher Sharon Fisher Profile: Sharon Fisher


The laws governing search and seizure of data on a person’s cellphone continue to evolve – and next fall, they’re likely to evolve some more, as a critical case goes to the Supreme Court. At the heart of the case is the distinction between content and metadata.

Let’s say you send someone an email message. The body of the message is the content. But all the information about the message – to whom you sent it, when you sent it, where you were when you sent it, and so on – is metadata, or data about the message. In a number of cases, courts, prosecutors, and law enforcement have made the distinction between the two, saying that while a search warrant is required to see the content, the metadata is fair game.

Now, one of those issues – in particular, the location data of your cellphone – is actually going to be argued in front of the Supreme Court, which is likely to settle the issue once and for all.

It’s all due to a case called Carpenter. Two guys in Detroit were accused of robbery, and the Federal Bureau of Investigation (FBI) used their cellphones to prove that they were nearby a number of the incidents. To do this, the FBI went to the suspects’ cellphone providers and obtained a lot of data about the suspects’ locations – more than 12,000 for one guy, and almost 24,000 for the other guy. The defense attorneys for the guys are saying that the phones revealed so much personal data about the guys that a warrant should have been required for the search.

Moreover, these two guys aren’t the only ones who had their phones searched for location data; according to providers such as AT&T, this happens thousands of times a year.

You might think, “Wait. Didn’t the Supreme Court decide this already?” Well, sort of. In June, 2014, in a case known as Riley, the Supreme Court ruled that  law enforcement officials needed a warrant to search someone’s cell phone. However, this case is different, because Riley covered searching the content of a cellphone, while Carpenter covers searching the metadata.

A number of organizations – including such odd bedfellows as the American Civil Liberties Union (ACLU), the Electronic Frontier Foundation, and the conservative Cato Institute — have filed friend-of-the-court briefs hoping to protect metadata, saying that giving law enforcement access to a person’s location files amounts to unlawful search and that a warrant should be involved.

“The Fourth Amendment was designed precisely to protect the kinds of intimate details that police seized without a warrant in Carpenter,” writes the ACLU. “For example, an analysis of Carpenter’s whereabouts suggests that he slept away from home on December 22, 2010, in what appears to be an aberration. The location data also shows that in the early afternoon on a number of Sundays, Carpenter made or received calls from the cell tower sectors nearest to his church. His cell phone records do not routinely show him in that area on other days of the week, implying that he was worshipping at those times. Together, the data reveals a granular accounting of Carpenter’s locations and movements over the four-month period.”

“Although the case is formally about cell-site records, it’s really about where to draw lines in terms of what network surveillance triggers the Fourth Amendment and how the Fourth Amendment applies,” argues Orin Kerr of the Volokh Conspiracy, in the Washington Post. “The justices can’t answer how the Fourth Amendment applies to cell-site records without providing a framework for how the Fourth Amendment applies to many other forms of surveillance, such as visual surveillance, obtaining traditional phone records, obtaining e-mail transactional records, obtaining credit card records and the like.”

Not everyone agrees. “Carpenter v. United States is part of the ACLU’s campaign to hobble police and shield wrongdoers — both terrorists and common criminals — from the latest technologies available to law enforcement,” writes Betsy McCaughey in the New York Post, while muttering darkly about terrorists. “But how else could agents find out whether he was near the robbed stores?” (Fortunately, “but law enforcement didn’t have any other way to get the information” isn’t typically an acceptable excuse for violating the Constitution.) There is also some concern that such a ruling could limit the use of location data by marketers.

A particular nuance in this case is the notion of third-party doctrine, Kerr explains. In other words, law enforcement didn’t get the metadata directly from the suspects’ cellphones, but from a third party – their service providers. Third-party records require only “reasonable suspicion” that a person was involved in a crime, not “probable cause,” which requires a warrant, writes Peter Henning in the New York Times.

What’s important about this case is it will determine whether metadata from a third party will also require a search warrant, Kerr explains. For example, the third-party doctrine is frequently cited by the government in support of the legality of NSA collection of metadata, writes Emma Kohse in the Lawfare blog.

Another nuance is that the Supreme Court has already ruled that collection of data from a GPS tracker required a warrant, but law enforcement has argued that the cellphone tower location data obtained in Carpenter was less specific than the data from a GPS tracker, so it didn’t require the same level of protection, Henning adds.

In the meantime, there’s not much you can do to avoid this other than turning off your phone. Moreover, this isn’t even data collection that you can stop by turning off or deleting location tracking, because it’s the cell tower data collected by your provider. So it will be interesting to see how the Supreme Court – with its newly appointed justice Neil Gorsuch – will rule.

4  Comments on this Post

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  • davidcarr
    I would like to see how this turns out. It will set a precedent for the future and what is protected or not.
    265 pointsBadges:
  • BobLoblaw
    Would it be a fishing expedition for law enforcement to us all cell metadata near a series of crimes to narrow down phones which were in the vicinity at the times and then investigate those people?  Similar to searching every garage in a neighborhood looking for a stolen bicycle.  
    20 pointsBadges:
  • spintreebob
    In searching every garage, the police have have the option of
    asking permission of the occupant of the garage,

    asking permission of the landlord, or mortgage company or other 3rd person party that has some connection to the garage but is not the first party occupant of the garage

    entrapping or intimidating (not asking) to gain access.

    Obtaining a search warrant naming the specific garage and not all garages on the block.

    Planting a small smoke bomb in or beside the garage and then calling the fire dept which breaks into the garage to make sure there is no fire inside.... and which the police can then enter. (Happens more often than you realize in high crime areas.)

    Outright disregard for all of the above and just searches the garage without asking.

    A parallel to cellphone data, and internet data, can be drawn from each garage scenario.

    If police are given access to metadata on Cell Towers,then can police stop me on the street and tell me: "We don't have a search warrant. But you must let us see the metadata on your cell phone without a search warrant. Can they knock on my door and demand to see the metadata on my cellphone? How about the metadata on my laptop?
    70 pointsBadges:
  • Neil Hamilton
    50 pointsBadges:

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