Matthew T. Mangino
GateHouse Media
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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