Supreme Court weighs privacy rights in digital age in pivotal cellphone case

WASHINGTON — Timothy Carpenter's mistake in the armed robberies of cellphone stores in Michigan and Ohio may have been his decision to carry a cellphone.

To obtain Carpenter's conviction and lengthy prison sentence, police relied on data obtained without a warrant from wireless carriers revealing where he had been over a 127-day period. Courts upheld the search of cell tower records under the theory that people who give information to third parties have no expectation of privacy.

But if that's the case, privacy groups warn, what about email and text messages, social media communications and intimate photos? What about Internet browsing histories and WebMD medical queries, or books, groceries and drugs bought online? What about today's "Internet of Things" — Fitbits and medical devices, cameras and security systems, Google Home and Siri?

Not to worry: The Supreme Court is on the case.

Without shedding their affinity for morning coats and quill pens nor their disdain for communicating by email, the justices on Wednesday will hear Carpenter's lawyers argue that the so-called "third-party doctrine" presents a clear and present danger in the digital age.

“This is the most important Fourth Amendment case we’ve seen in a generation,” said Nathan Freed Wessler of the American Civil Liberties Union, who will argue the case in court. A ruling in favor of the government, he said, would "make our lives into an open book.”

Nonsense, says the Trump administration, backed by 19 states and the nation's district attorneys, While tracking suspects' travels has proved invaluable to law enforcement, they argue, a decision in favor of the third-party doctrine need not open the door to email and other data stored on the Internet or in the cloud.

"If businesses’ possession of great quantities of digital information raises new privacy concerns, legislatures are well positioned to address them," Solicitor General Noel Francisco's brief to the court says. "Policymakers can enact additional privacy protections if society deems them warranted."

'There's an app for that'

To prosecute their case against Carpenter for the 2010 and 2011 robberies, the government used cellphone records to locate him 12,898 times over 127 days — an average of 101 times daily that he tried to send or receive calls, texts, emails or other information.

The records were obtained under the Stored Communications Act of 1986, which allows phone companies to turn over records if the government has "reasonable grounds" to believe they will help a criminal investigation. A search warrant requires a tougher "probable cause" standard.

In 2016, police made some 125,000 requests for cellphone location data from Verizon and AT&T alone, often involving several suspects over periods of months.

The Supreme Court has veered in recent decades from permitting to prohibiting such searches. In two cases from the 1970s, the court ruled that criminal suspects had no privacy rights in records maintained by banks and phone companies — the latter case involving the numbers called from landlines.

But in recent years, the justices have swung back the other way. In 2012, they ruled 9-0 that police violated a suspect's rights by attaching a GPS tracker to his car for 28 days. While the case was decided on trespassing grounds, five justices said the third-party doctrine might be out of date.

"This approach is ill-suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks," Justice Sonia Sotomayor wrote.

Two years later, the court ruled unanimously that police cannot search cellphones and smartphones during arrests without a warrant. Chief Justice John Roberts noted that the devices were "a pervasive and insistent part of daily life."

"The phrase, 'There's an app for that' is now part of the popular lexicon," Roberts wrote. "The average smartphone user has installed 33 apps, which together can form a revealing montage of the user's life."

300,000 cell towers

This week's case focuses not on the contents of Carpenter's phone or his text and voice conversations, but on his whereabouts. When the robberies were committed, data from cell towers identified Carpenter's location within a few miles, often just a few hundred yards. Today, with more than 300,000 cell towers in the United States, the data is even more accurate.

Defenders of the status quo contend that increased convenience and security requires some loss of privacy. "Most Americans understand that there is a necessary diminution of privacy in the digital era and are willing to accept the tradeoff," the National District Attorneys Association said in court papers.

But given the granularity of the data, technology companies and privacy rights groups argue that the third-party doctrine must be revised. More than 95% of U.S. adults have cellphones and 77% own smartphones, according to the Pew Research Center. Worldwide, people send and receive 269 billion emails every day and share more than 3.5 billion photos.

"Transmitting personal data to the companies that provide digital products and services is an unavoidable condition of using technologies that people find beneficial and useful, and forgoing the use of those technologies for many is not an option," says a brief submitted on behalf of major technology companies — including Apple, Facebook, Google, Microsoft, Twitter and Verizon.

Forty-two scholars of criminal procedure and privacy filed court papers lambasting continued use of the third-party doctrine in the digital age. "Smartphones, smart homes, smart cars, and smart medical devices connected through the Internet of Things are only 'smart' because of third-party interconnectivity," they wrote.

And the libertarian Competitive Enterprise Institute warned that the records available through third parties "can reveal excruciatingly intimate details about physical and mental health, as well as marital and family relations. They reflect each American’s beliefs, thoughts, emotions, sensations, and relationships."