U.S. Supreme court cellphone warrant case puts free speech – not just privacy – at risk

“On Wednesday, the supreme court will consider whether the government must obtain a warrant before accessing the rich trove of data that cellphone providers collect about cellphone users’ movements,” Jameel Jaffer and Alexander Abdo write for The Guardian. “The parties’ briefs make little mention of the first amendment, instead framing the dispute – for understandable reasons – as one about the right to privacy. Yet the court’s resolution of the case is likely to have far-reaching implications for the freedoms of speech, press and association.”

“The case, Carpenter v United States, arises out of the government’s prosecution of Timothy Carpenter for a series of armed robberies carried out in south-eastern Michigan and north-western Ohio several years ago. In the course of its investigation of the crimes, the government ordered Carpenter’s cellphone provider to turn over data it had collected relating to Carpenter’s movements. In response, the provider produced 186 pages listing every call that Carpenter had made over a 127-day period, as well as coordinates indicating where Carpenter had been at the beginning and end of each of those calls,” Jaffer and Abdo write. “Importantly, it turned over these records even though the government had not obtained a warrant based on probable cause. Carpenter asked the court to suppress the government’s evidence under the fourth amendment, which protects the right to privacy.”

“The government contends that Carpenter lacks a constitutionally protected privacy interest in his location data because his cellphone was continually sharing that data with his cellphone provider,” Jaffer and Abdo write. “In a brief filed in support of Carpenter, 19 leading technologists explain how easy it is to use a person’s location data to learn about her beliefs and associations. (We represent the technologists.) With very few data points, the technologists observe, an analyst can learn whether a given person attended a public demonstration, attended a political meeting, or met with a particular activist or lawyer. With more data, an analyst can identify social networks and learn not only whether a given person was at a public demonstration but who else attended the demonstration with her.”

Jaffer and Abdo write, “The court should consider what will remain of these indispensable democratic freedoms if the government is afforded access, without close judicial supervision, to the information that cellphone providers are continuously collecting about all of us, and to the other sensitive and even intimate records that all of us passively and routinely share with third parties.

Read more in the full article – recommended – here.

MacDailyNews Take: Hopefully The Supremes get it right and require a warrant for such information.

The U.S. Supreme court should block warrantless cellphone tracking.

SEE ALSO:
Apple, other tech companies ask Supreme Court to block warrantless cellphone tracking – August 15, 2017
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

20 Comments

  1. The police may follow a suspect or otherwise use information about whereabouts without a warrant. The court will rule this is simply a technology variant on that. The content of a call is protected, not the location from where it is made.

      1. Since as a user you agree to use a service that connects you to a cell tower or wifi connection, you will be tracked. Easiest fix, Don’t leave any connections cell or data on when you don’t want to be tracked. Even more secure is not to carry any such device even if turned ‘off’ while connected to any power source.

    1. Yes, that’s the correct legal analysis. The content of the phone call is subject to privacy, but your movements are not. There is no presumption of privacy as you move about.

    2. The question that arises in my mind is should we allow these companies to collect and store this data. If it is not collected and stored, then it is not available and the issue of a warrant is no longer relevant.

      It appears that technology has placed us in a Catch-22 situation. If you want to use modern technology like cell phones and the internet, then you have to relinquish a substantial chunk of your fundamental privacy. Your life becomes somewhat of an open book to anyone who can access that aggregated data – government, military, criminals, hackers, disgruntled ex-spourse…you name it. If you avoid modern technology, then you will have increasingly greater difficulty engaging in a viable career and performing everyday tasks.

      Technology was supposed to help, and some of it does. But it has some seriously negative consequences, as well.

      1. The need to collect and store this data, at least from the companies providing the connection service, is a data trail for billing you properly and proving you made those connections for a length of time when there is a dispute. If there comes a time when all such services need not be billed I can see a strong case for elimination of collecting and storing such data. Till that time if one company is allowed, it should be assumed all companies will be able. No having your cake (mobile services) and eating it too (location privacy) till then.

  2. I hope they have to get warrants to get such information about people….

    Then I remind myself how easy it is to get a judge to get you such said warrant with no moral consideration whatsoever…

    1. Location data may be hard to outlaw. Consider that the police can question your neighbors, co-workers, friends as well as more ‘stationary’ persons like homeless and elderly sitting on their porch or park bench about where you were and at what time w/o a warrant. Basically Location data but much more widely dispersed but still ‘collectible’.

  3. Phew, I was worried about the headline but after reading the article I think that free speech and privacy of the people of the free and civilized world is safe, at least until Apple’s home country decides to make up wild accusations and/or whines like whhhhaaaaa “this country was involved in 9-11” or “this country has a weapons of mass destruction program”.

    Just don’t get caught in international waters, the new trumtanic fleet is out there. Best stay close to the icebergs.

      1. Ah KingMe| that was a funny post, well said. My nautical reference however refers to the coast guard of Apple’s home nation as it is now running a fleet of floating Guantanamos. International waters, that’s where the real total disregard for the law deals really are.

        Thanks for the laugh, yes I’ve been reading about the navy crashes, unfortunately loss of life has been involved in some of these.

  4. Given recent SCOTUS decisions that effectively categorize “corporations as people” and equates “money to speech,” I am beginning to fear for the longevity of the republic. Time for another revolution, it seems.

  5. The real issue is warrantless aggregation of hundreds of users concurrently.

    Yes, the police can tail you and witness where you go without a warrant. Yes, the police can ask your neighbors and people on the street about your whereabouts. However, they have no practical means to do those same procedures with dozens or hundreds of people.

    If the police can do such tracking of individuals without warrants they can, as the article describes, tell what groups of individuals are meeting where and when.

    But where do you draw the line from a LEGAL standpoint (putting aside any ethics argument for the moment). Do you allow tracking of individuals by the police but not groups? What if the police are tracking without a warrant two separate individuals on two separate cases and there is an intersection in the data that leads to critical information about a third case? Is that information now and forever more inadmissible because a warrant was not issued to track two individuals at once with regard to the third case?

    Allowing tracking one individual without a warrant but not multiple people would become a legal nightmare. Allowing the tracking of multiple people as an aggregate without a warrant would also become a legal nightmare.

    The answer is just get the damn warrant and be done with it. Those records are not going anywhere. Get the warrant and move forward.

    1. The show currently airing “Wisdom of the Crowd” directly hits the topic of ‘tracking’ individuals by the public group. Since the company providing the system nor the individuals participating in it are not legal law enforcement, collection of location, audio and video is allowed while the same is banned for the police? In the show eventually the police department work with them to solve crimes w/o needing warrants. I know it’s a show but with current tech entirely plausible.

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