Apple, other tech companies ask Supreme Court to block warrantless cellphone tracking

“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”

Read more in the full article here.

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.

Read more in the full document here.

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

37 Comments

    1. Absolutely correct. The gov’t should have a warrant to get *any* third party service/purchase records on any citizen. Phone records, credit card purchases, etc. etc.

      Kyllo v United States already brushed on the technological aspects of searches in this brave new era although that was strictly limited to one’s home. They ruled (5-4) that a warrant was required to perform a thermal imaging scan on someone’s house.

      Regardless, the location information used to make your phone work outside your house is not publicly available data (unless you willingly broadcast your location to the general public, I’d suppose) which means, by definition, it is privacy. And the SC has already ruled that the Constitution has an implicit right to privacy.

      I assume the multiple negative votes for Bot’s post are reflexive. He’s clearly right on this.

    1. The government isn’t scanning. It’s accessing the location data that the cell network collects on the location of any device on the network (not exact position, but what cell tower or WiFi network is being used for access). There is no way to block the collection of that data, because the network needs it to establish a two-way contact with your phone and pass the connection to another tower when necessary. Apple can’t avoid that process and still sell working devices.

      I agree with botvinnik (!) that the Government should have a warrant to access the data, but the courts have not agreed that they must have one. The theory is that by sharing your location data with a third party (as if you had a choice), you have waived your right to privacy over that data. You have no right to object to the subsequent Government seizure of that data because you weren’t the person it was seized from.

      1. Ben Franklin’s aphorism “Three can keep a secret if two are dead aside”, it does not logically follow that if I tell two or three of my friends that I will be at a particular location at a particular time that the information is now public for Google, stalkers or the government to do what they wish.

  1. A free person’s constitutional right to privacy is already deeply degraded by the numerous legal exceptions to its use, but big gub’mnt wants more from our private lives by completely sidestepping the FISA court which normally issues rubber stamps to any gov. whine to snoop.

  2. To my mind, this issue is about:

    A) #MyStupidGovernment being LAZY.
    B) #MyStupidGovernment being in too big a HURRY.
    C) #MyStupidGovernment attempting to slime it’s way toward full bore TOTALITARIANISM.

    Meanwhile, the Fourth Amendment of the US Constitution lives on, whether they like it or not. Screwing around with it behind the scenes will always become public and will be chastised as well as condemned. ‘The United States of America’ still means something profound. “Give me liberty of give me death” still means something to the best of US.

    1. Caveats: The Fourth Amendment only applies to US citizens while on US territory. Sorry everyone else!

      Sadness:

      1) The Internet often tosses US citizen data outside of the USA, at which point #MyStupidGovernment says they can snoop at will. I say “HUMPH!.

      2) This caveat obviously affects how even US citizens are treated at the borders. No officially back in the USA yet? They get to inspect your everything. I say “BLEH!”

      😉

            1. you are on sad, bitter little man.

              No, actually I’m trying to find information on “latinizevasoconstrictor.dll” as a members computer is getting an error the file is not found on boot.

              Weird that there is nothing online about that DLL.

              you are still a sad, pathetic little man who’s whole self worth is wrapped up in idolizing the clown occupying the white house.

              I hope your psyche is strong enough to handle it when he goes down.

            2. All power to the people. Black power to black people. White power to white people. Yellow power to yellow people. Red power to red people.

              I burned that bridge for you bottwipe. I burned it because the universe at that time, under the influence of those drugs, told me to say “What about the bridge”.

              I did it. It was a truly amazing and memorable moment, one I will always treasure. I will also treasure setting up the GED program. After all, I was a teachers aide according to the Great State of California.

              I also remember being in counseling. with Ms. Hunt. Again, rehabilitation based incarceration allowed me to be a teachers aide and certified counselor.

              So I made a joke. Do you know what Ms. Hunt did. Counseled me. I remember something I told her. That you could drop me on top of the mountain above the camp, and I would survive. She said yeah, thats true.

              First time I actually got counseled in jail as I was usually the nerd so got to run the vcr’s snd cameras… I video’d the groups.
              I never got counseled. HaHa.

              Hey bottwipe. I may have done that… but I also went on to set the example for the apple store today. The Byte Shop NorthWest. Me and the Terrells… Lou, Kevin, Mike, Dale, Jane, Steve.. Ray.
              Al, damn, I am an arrogant mother. Can’t forget Dana and Char. Richard. But hey. Who are we to ignore history.

              Oh yeah. How you likin your trump now.

            3. here’s a novel concept, Racebaiter: how about “power to the people” an idea shared by Jefferson, Lennon and MLK…a concept rejected by Alinsky, Lenin and XCon.

            4. I guess you can’t read very well. All power to the people.

              here is a novel concept. bottwipe trying to cite liberals to assuage his guilt as being such a buttwipe.

              All power to the people.

            5. you are a blatant collectivist pimp, the antithesis of free men. You have the principles of a common thief, you and your ilk have been rejected by the American people. Your lies and treason will be destroyed by the truth and the will of God.

            6. better said by Van Morrison in an old lyric:

              “You can’t stop us on the road to freedom
              You can’t keep us ’cause our eyes can see
              Men with insight, men in granite
              Knights in armor bent on chivalry.”

              I have no doubt that, like JFK, Trump will be murdered by the evil that is the deep state, specifically the intelligence agencies and their whores, the main stream media. But as Morrison aptly quotes, “our eyes can see” while your darkness is blind.

              you will lose.

              again.

              as all tyranny does.

            7. oooohhhhh now doG is going to get me. Like I said bottwipe…. you are an unhinged buttwipe.

              Actually bottwipe, I’m pretty much a loner. Always have been. My avatar… cowboy.. pioneer… explorer… We all have principles… big deal…

              Seems like your “ilk” is being rejected by the American People. We will not stand for your un ameriKKKan ways.

              Awfully quiet on the tRump Rump adoration front.

            8. my cause is just and right: it is the defense of the sovereignty of the United States, the defense of the Constitution of the United States, the defense of the Rights of Man and the rule of law.

            9. …further, that those rights emanate from the Creator and not the state, that those rights are guaranteed simply because you are a legal citizen of our country.

            10. Yes but it’s the means employed. And since you refuse to condemn the slaughter of an anti Trump activist, we now know you support the white trash supremacist’s Nutters Charter means_to_an_end.
              So…you’re just a charlatan…a quack in a fool’s circus wearing a constitutional coat of convenience.
              Zoob

            11. no, you are the fraud who refuses to acknowledge the Soros-financed antifa and BLM that has been the scourge of the freedom of speech and the freedom of assembly in recent history. Yours is the defense of anarchy, treason, violence and destruction.

              PS: f you.

            12. There are no lizard people directing the world. Soros isn’t hiring people to riot.

              Your nutty pronouncements are no different than what was in John Birch Society pamphlets from 30 years ago.

              Face it bottwiipe. You backed a crooked businessman who pretended like he could be president and he is is way over his head. Step into the light. You don’t have to go down with the ship.

            13. Unlike the French that failed to back Le Pen, the American people have rallied to begin the battle to destroy the evil that is the Democrat party and the evil that is the globalist agenda. This is a war and Donald Trump is a warrior.

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