Supreme Court: Redefining privacy in the digital age
“The future of digital privacy is up for grabs,” said Sam Baker in Axios.com. Last week, the Supreme Court heard oral arguments in a “landmark” case over whether police can track a person’s cellphone location without first obtaining a warrant. Timothy Carpenter contends his Fourth Amendment rights against unreasonable search and seizure were violated when cops used nearly four months’ worth of his cellphone records, showing that his phone pinged cell towers near the sites of burglaries, to convict him of a string of armed robberies. The government argues that under the Fourth Amendment, there is no “reasonable expectation of privacy” for data that is voluntarily handed over to third parties, such as a bank or phone company, and the Supreme Court established as much in the 1970s, granting police warrantless access to bank records and landline call records. But in a “lively” round of arguments, a majority of justices “seemed troubled” by this approach, said Adam Liptak in The New York Times. Both liberals and conservatives on the court noted that technological advances may require new thinking, but also struggled with how to reconcile a law “drafted in the 18th century” with “a world in which people’s movements are continually recorded by devices in their pockets and cars.”
It is “no exaggeration” to say that Carpenter v. United States “could determine the future of our privacy in the internet and cellphone age,” said Matthew Tokson in NYMag.com. The “third-party doctrine” that governs what is protected under the Fourth Amendment has not been re-examined since the “pre-internet era.” Yet today, nearly every form of electronic data we create, “from our emails to our Google searches to our contact lists to the websites we visit,” is routed through third parties. Does that mean it should be accessible to cops without probable cause? Justice Sonia Sotomayor pointed out that by the government’s standard, police could now “ask for almost anything” on citizens, said Amy Davidson Sorkin in NewYorker.com. And “soon enough, they could ask for more than we can even imagine.” Today, it’s a minute-by-minute map of your movements; tomorrow it’s heart-rate data from a smartwatch or “information about the interior of a home from a smart thermostat.”
“If more protections are needed, Congress can add them,” said The Wall Street Journal in an editorial. What the justices should not do is hamper the work of law enforcement. “The routing data from cellphone calls does not reveal the content of any communication, and it can be invaluable at the start of a police investigation.” Civil libertarians have struggled to find an example of this data actually being misused. “If the threat of abuse is as large as privacy activists claim,” you’d think they’d be able to find “a better champion” than a convicted felon like Timothy Carpenter.