Matthew T. Mangino
December 1, 2017
Chief Justice John Roberts summed up the issue in this week’s blockbuster Fourth Amendment argument before the U.S. Supreme Court with this simple comment, “The whole question is whether the information is accessible to the government” without a warrant.
The Fourth Amendment requires the government to obtain a search warrant pursuant to a standard known as “probable cause” before obtaining an individual’s private information.
The Fourth Amendment protects the right of people to be “secure in their persons, houses, papers and effects, against unreasonable searches and seizures.” Where does electronic data fall when considering “houses, papers and effects?” Do the police have to get a search warrant in order to obtain cellphone location information that is routinely collected and stored by wireless providers?
The case before the Supreme Court this week, Carpenter v. United States, involved a series of armed robberies at Radio Shacks in Michigan and Ohio to, ironically, get cellphones.
The police arrested several men, one of whom confessed that he was part of a group that had robbed nine stores within the previous year. The suspect identified Timothy Carpenter. At Carpenter’s trial, prosecutors used data from his cellphone provider to put him at or near the scene of each of the robberies.
The Supreme Court has, in recent years, ruled in favor of the defense on major cases concerning how criminal law applies to new technology. In 2012, the court held that a warrant is required to place a GPS tracking device on a vehicle. In 2014, the court ruled that police need a warrant to search a cellphone that is seized during an arrest.
In Carpenter’s case, the police obtained an order of court under the Stored Communications Act, which does not require a showing of probable cause. The law authorizes release of records when there are “specific and articulable facts showing that there are reasonable grounds to believe” the records are “are relevant and material to an ongoing criminal investigation.”
A search warrant would have required probable cause, a more stringent standard than provided under the Stored Communications Act.
During this week’s argument, Justice Sonia Sotomayor noted that cell phones have become an “appendage” for people in the modern era, reported CNN. “Most Americans, I still think, want to avoid Big Brother,” she said. “They want to avoid the concept that government will be able to see and locate you anywhere you are at any point in time.”
The concern does not stop with the collection of location data. The capacity to store an enormous amount of data has long term implications for individual privacy. Data is routinely collected on web-surfing, shopping, dating, dining, social-interests and travel -- documenting nearly every act of a cellphone user. This new era of technology demands new protections against search and seizure of personal digital property.
Are the courts best suited to make policy on the protection of digital privacy? Courts address issues on a case-by-case basis, it may take years for the Courts to develop a coherent body of law on the protection of digital privacy, suggests David Von Drehle in the Washington Post.
Legislative bodies are best equipped to develop policy on this issue. If done properly, and not as a knee-jerk reaction, Congress or individual state legislatures can methodically study the issue and come up with a comprehensive policy for dealing with privacy in this new age.
Some of the legislative work is already underway. A bipartisan group of senators recently introduced the USA Rights Act to overhaul aspects of the National Security Agency warrantless internet surveillance program.
The bill, led by Senators Ron Wyden (D) and Rand Paul (R), would end the warrantless “back door” searches of American calls, emails, texts and other communications. This is a start, but it only scratches the surface when it comes to delineating the protections that should be afforded digital privacy in the 21st century.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner’s Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.
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