Pings and Privacy: SCOTUS Hears Fourth Amendment Case

Pings and Privacy: SCOTUS Hears Fourth Amendment Case

Last week, the Supreme Court of the United States heard oral argument for a fourth amendment case with serious privacy implications: whether the government needs a warrant to obtain cell phone data that reveals a user’s whereabouts.

As CNN and other news outlets have reported, the case involves Timothy Carpenter, who confessed to nine armed robberies at Radio Shack and T-Mobile stores in Michigan and Ohio. His confession included revealing his cell phone number and that of his accomplices. Under the Stored Communications Act, the FBI acquired Carpenter’s cell-site data, which plotted his position over 127 days and in the areas that the robberies took place. This data ultimately helped convict Carpenter of aiding and abetting crimes.

Arguing that the Fourth Amendment required the government to have obtained a search warrant under “probable cause” instead of the Stored Communication Act’s “reasonable grounds,” Carpenters’ counsel attempted to suppress the cell-site data. They were not successful. Per CNN:

“A federal appeals court ruled in favor of the government, holding that while the Fourth Amendment ‘protects the content of the modern-day letter,’ courts have not yet “extended those protections to the internet analogue to envelope markings, namely the metadata used to route internet communications, like sender and recipient addresses on email, or IP addresses.’”

The ACLU, represented by attorney Nathan Freed Wessler, appealed the case before the Supreme Court. Wessler argued that the public’s privacy would be diminished if the government wasn’t held to Fourth Amendment restrictions when pursuing these records, in particular after a 24-hour period. Per CNN:

“Deputy Solicitor General Michael R. Dreeben stressed that individuals have diminished privacy rights when it comes to information that has been voluntarily turned over to a third-party, such as a phone company.”

The justices’ had various reactions: from Justice Sonia Sotomayor fearing a “dragnet sweep” and Justice Elena Kagan concerned about the possibility of “24/7 tracking” to Chief Justice John Roberts disagreeing that the collected information belonged to the cell service company. It’s the customer’s presence and pings that help the company create the record. Justice Nell Gorsuch considered trespass versus privacy grounds. (The recent post in the SCOTUS blog contains an in-depth reaction of the justices.)

Again per CNN:

“Dreeben pushed back, telling the justices that while the technology is new, established legal protections are sufficient to deal with privacy concerns.”

The court’s decision can’t be underestimated; it will have enormous privacy implications.

USA Today quoted Wessler, “This is the most important Fourth Amendment case we’ve seen in a generation.” If the court rules in favor of the government, Wessler contends it “would make our lives into an open book.”

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