If you care about privacy, whether it’s online or on your smartphone, the coming weeks will define the scope of privacy rights for Americans for the next decade or more. Two issues – whether the police can track on our cellphone location 24/7 without a warrant, and the potential to curtail some of the NSA’s most controversial powers to spying on Americans – will be decided by Congress and the US supreme court, and it’s hard to overstate their significance.

On Wednesday, the US supreme court heard a landmark cellphone privacy case called United States v Carpenter. The case, brought by the ACLU, ostensibly involves only one defendant: someone accused of participating in a series of robberies, where the police collected location data from cellphone towers to determine where he was over a series of months.

But as the ACLU made clear in oral arguments before the court today, how the nine justices rule in Carpenter will affect the privacy rights of virtually every single American: critically, the police did not get a warrant to access the information, and they argue that they never need one to access any American’s location any time they want.

Given nearly everyone constantly carries around a smartphone – which is always connecting to surrounding cellphone towers that can pinpoint where you are – cellphone location information can paint an incredibly detailed picture of virtually your entire life. Think about it: cellphone location information can reveal when you go to work, when you are home, when you are sleeping, when you wake up, when you go to a bar, attend church, or a political rally.

In oral arguments in the case, Justice Sotomayor – who has been the best justice on privacy issues for years – put it succinctly: “a cellphone can be pinged in your bedroom. It can be pinged at your doctor’s office. It can ping you in the most intimate details of your life. Presumably at some point even in a dressing room as you’re undressing.”

One would think this extremely sensitive information that would be protected by the “reasonable expectation of privacy” standard laid out under the fourth amendment. Police plainly should need a warrant before accessing it.

But not according to the government. In the case at hand, the police used a standard for less stringent than the fourth amendment’s “probable cause” standard, but the argument the Trump administration is making to the justices is even more radical: as the ACLU puts it, the government is contending that the government “could obtain every American’s location history detailing their movements 24 hours a day, seven days a week, month after month, with no quantum of suspicion or judicial oversight whatsoever”.

If the US supreme court rules the right way, it could protect the data emitted from our cellphones, often without our knowledge and provide safeguards for police abuse. If they don’t, police may have cart blanche power to turn any American’s smartphone into a tracking device on demand.

It’s not an exaggeration to say this is the most important privacy case in front of the supreme court in a generation concerning NSA surveillance reform.

Meanwhile, lost in the daily torrent of Trump controversies, Congress is now ramping up debate on Section 702 of the Fisa Amendments Act – one of the main laws used by the NSA to conduct surveillance worldwide – which is set to expire at the end of the year.

Section 702 is one of the most controversial laws underpinning its vast surveillance apparatus. It’s the law behind the Prism program that Edward Snowden revealed in 2013 to worldwide headlines, through which the NSA was gathering all sorts of emails, videos and chats from Google, Facebook, Yahoo and more on untold numbers of people.

Section 702 was originally passed after the Bush administration’s illegal warrantless wiretapping was exposed by the New York Times in the mid-2000s, where Congress actually expanded government surveillance powers. It says that the NSA does not need a traditional probable cause warrant to target individuals overseas who are talking with Americans. Instead, they only need to submit broad categories of people they’d like to target to the secret foreign intelligence surveillance court.

The NSA recently revealed that more than 100,000 people overseas are being directly targeted under this program, and that does not include all the Americans talking to those targets, nor does it count the mass surveillance that the NSA conducts by covertly tapping overseas internet cables, known as “upstream” surveillance, that sweeps up countless other Americans under the same law.

The last time Section 702 was up for renewal in 2012, Congress shamefully voted down several commonsense transparency and accountability provisions on how the NSA could collect and use data of Americans without a warrant.

But that was before Edward Snowden happened, and the calculus has changed significantly.

There’s now a strong bipartisan coalition in Congress that is calling for at least some reforms to protect Americans who get swept up in the NSA’s dragnet. Among the reforms that civil liberties groups are pushing for are:

First, requiring the FBI to get a warrant before diving back into the NSA’s vast 702 database and search for information on Americans who may have been talking to people overseas. The FBI has previously said it does this without a warrant more times that it can count.

And second, formally barring the blatantly unconstitutional practice known as “about” surveillance, where the NSA indiscriminately sweeps up millions and millions of emails of anyone in the US communicating with someone overseas and then search everyone’s emails for certain search terms.



The NSA did this in total secrecy for years until it was revealed by Snowden documents in 2013, and last year the agency temporarily halted this program after criticism from the FisaA court. But they have left the door open to continuing it at any time.

What’s most interesting about this debate is that it’s not falling along traditional partisan lines: a bipartisan coalition of senators and House members have banded together to say they won’t reauthorize the law without at least some reforms.



The proposed reforms, right now, aren’t strong enough, but they still face an uphill battle given the Trump administration is pushing for Congress to pass a permanent extension with no changes. There are many congressmen who are probably on the fence, so if you want to do something about it, contact them immediately.

While both issues before Congress and the court are complicated, and you can get lost in the weeds just by reading about them, they both come down to a simple and reasonable axiom any law enforcement agency should have to follow in the digital age: get a warrant. Hopefully by early next year, they will have to in both cases.