“In a legal brief filed last night, a group of several high-profile technology companies asked the Supreme Court to consider the privacy implications of warrantless law enforcement access to cellphone location data,” Colin Lecher reports for The Verge.

“The court recently agreed to hear the case Carpenter v. United States, which centers on whether law enforcement can obtain electronic location information without a warrant, if that information is held by a third party,” Lecher reports. “The case will be closely watched, as the court’s decision may have profound implications for privacy in the digital age.”

“The ACLU is representing Timothy Carpenter, who was convicted on robbery charges after investigators obtained location information on him without a warrant,” Lecher reports. “The ACLU says the Supreme Court is expected to hear arguments beginning in the fall”

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MacDailyNews Take: From the “BRIEF FOR TECHNOLOGY COMPANIES AS AMICI CURIAE IN SUPPORT OF NEITHER PARTY” signed by Apple Inc. and others”

The Internet and Internet-connected devices have revolutionized nearly every facet of our lives. Americans rely daily on services made possible by networked technologies — from email, smartphones, and web-based social media the Court has already encountered to new and evolving products and applications in the “Internet of Things,” such as smart-home devices that can be used to control room temperature and lighting, order groceries, and perform a multitude of other tasks. These devices and services not only confer immense value on users and society, but in many instances are considered practical necessities of modern life.

Using these technologies often involves transmitting highly personal information through the networks and applications of digital service providers. That includes transmission of metadata — i.e., data about data — generated by automated processes that are part of the background operation of digital devices and applications. Such transmissions are inherent features of how the Internet and networked devices work. Short of forgoing all use of digital technologies, they are unavoidable. And this transmission of data will only grow as digital technologies continue to develop and become more integrated into our lives. Because the data that is transmitted can reveal a wealth of detail about people’s personal lives, however, users of digital technologies reasonably expect to retain significant privacy in that data, notwithstanding that technology companies may use or share the data in various ways to provide and improve their services for their customers.

Fourth Amendment doctrine must adapt to this new reality. Although amici 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. Doing so would reflect this Court’s consistent recognition that Fourth Amendment protections, governed as they are by reasonable expectations of privacy, must respond to changes in technology that implicate privacy. Indeed, in declining to extend the search-incident-to-arrest exception to searches of cell phones in Riley v. California, 134 S. Ct. 2473 (2014), this Court has already signaled that digital information deserves special consideration, largely because Internet-connected devices such as smartphones “are not just another technological convenience,” but are necessary to participate in the modern world, and “hold for many Americans ‘the privacies of life.’” Id. at 2494-2495.

In the digital context, inflexible doctrines that cat- egorically foreclose any protection for data automatically generated by ordinary digital activity — or that will be generated by the yet-to-be-conceived technologies of tomorrow—are not sustainable. In particular, the analog-era notion that transmission of data to a third party is necessarily “voluntary” conduct that precludes Fourth Amendment protection should not apply in a world where devices and applications constantly transmit data to third parties by dint of their mere operation. No constitutional doctrine should presume that consumers assume the risk of warrantless government surveillance simply by using technologies that are beneficial and increasingly integrated into modern life. Similarly, the fact that certain digitally transmitted information might have been traditionally classified as “non-content” should not unconditionally bar Fourth Amendment protection, as this data can often be highly revealing of the intimate details of a user’s life.

Rather than adhere to rigid Fourth Amendment “on/off” switches developed in the analog context, courts should take a more flexible approach that realistically reflects the privacy people expect in today’s digital environment. Consistent with the general reasonable-expectation-of-privacy inquiry, courts should focus on the sensitivity of the data at issue and the circumstances of its transmission to third parties. That approach would better reflect the realities of today’s digital technologies and accommodate the technologies of the future…

The Court should afford strong Fourth Amendment protection to digital data and reject mechanical application of the third-party doctrine and content/non- content distinction in favor of a more flexible analysis that takes account of people’s reasonable expectations of privacy in the digital era.

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SEE ALSO:
U.S. Supreme Court unanimously bans warrantless cell phone searches – June 25, 2014
As U.S. government discusses expanding digital searches, ACLU sounds caution – April 7, 2014
Apple to government authorities: ‘Show warrant to get data’ – May 9, 2014
Can U.S. police search your iPhone without a warrant? – April 28, 2014
U.S. court ruling opens phones to warrantless searches – March 1, 2012