Supreme Court justices voice support for digital privacy

Richard Wolf | USA TODAY

WASHINGTON — A majority of Supreme Court justices voiced concerns Wednesday that the government's ability to monitor people through their cellphones violates their privacy.

Just as they ruled over the past five years that police cannot use GPS equipment to track vehicles or search cellphones without a warrant, the justices cast doubt on the use of long-term cellphone location data.

In a case that could have broad implications for privacy rights in the digital age, justices on both sides of the ideological spectrum said rapid advances in technology make decades-old precedents inadequate.

"A cellphone can be pinged in your bedroom. It can be pinged at your doctor's office," Justice Sonia Sotomayor said. "I am not beyond the belief that someday a provider could turn on my cellphone and listen to my conversations."

The liberal Sotomayor was joined by conservatives such as Chief Justice John Roberts and the court's newest justice, Neil Gorsuch, who argued that permitting police to get information from third parties such as wireless carriers may be unconstitutional.

The latest case grew out of a series of armed robberies in Michigan and Ohio in 2010 and 2011. To prosecute their case against Timothy Carpenter, the government obtained cellphone records that revealed his approximate location over 127 days, placing him in proximity to the crimes.

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.

Lower courts upheld the search of cell tower records under the "third-party doctrine," used in earlier Supreme Court cases to uphold government access to suspects' bank records and the phone numbers called from landlines.

Since wireless carriers know where cellphones are by the towers they are using, the theory goes, consumers should realize their locations aren't private.

"I think everybody, almost everybody, knows that," Justice Anthony Kennedy, 81, said. "If I know it, everybody does."

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. Courts routinely grant those requests under the 1986 law.

But privacy groups warned that extending the theory to cellphone location data could be a slippery slope leading to email and text messages, social media communications, Internet browsing histories and the so-called "Internet of Things," from Siri to Fitbits.

Several justices said drawing new privacy lines for the digital age may be a task for Congress rather than the courts. But Nathan Wessler, the American Civil Liberties Union lawyer representing Carpenter, said the pace of technological change cannot wait for lawmakers to act.

Deputy Solicitor General Michael Dreeben, representing the government, argued that wireless carriers are akin to witnesses in a criminal investigation. The cellphone location data are business records, he said, not personal property deserving of privacy protection.

That argument didn't appear to sway a majority of justices, even though the cellphone records help police and prosecutors.

"Most Americans, I still think, want to avoid Big Brother," Sotomayor said.

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