skip to Main Content

Privacy in the Cellphone Age

(via Odds are you need to use that phone in your pocket many times a day — and doing so leaves you no choice but to constantly relay data revealing your location and movements to Verizon, AT&T or whatever cellphone company you pay for the service. For most people, most of the time, that’s not a concern, if they’re aware of it at all. But how easy should it be for the government to get its hands on that data?

That’s the question at the heart of a major new case the Supreme Court agreed on Monday to hear. The justices’ decision could redefine not only the limits on law enforcement access to cellphone-location records, but the future of surveillance more broadly.

The petitioner in the case, Timothy Carpenter, was convicted in 2013 of a string of armed robberies in Michigan and Ohio, based partly on location data that placed his cellphone near the scene of several of the crimes. The police got that data — revealing several months of Mr. Carpenter’s movements — without a warrant, which would have required them to show they had probable cause to believe a crime had been committed. Instead, they requested it under a federal law that requires only “reasonable grounds” to believe the data is “relevant and material” to an ongoing investigation — a more lenient standard. Mr. Carpenter challenged his conviction as an unreasonable search under the Fourth Amendment.

The lower courts ruled against him. There was no “search” in the first place, they said, because when he signed up with his phone company he agreed to let it record his location, and he couldn’t reasonably expect the information to remain private. That reasoning, known as the third-party doctrine, comes from a 1979 Supreme Court decision, when people made calls on rotary-dial phones and did their research in the Yellow Pages.

There’s good reason to question the scope of that doctrine now, when virtually everyone is online virtually all the time, being exposed to constant, warrantless digital surveillance. In a 2012 Supreme Court ruling that the police needed a warrant to track a car with a GPS device, Justice Sonia Sotomayor said in a concurrence that the doctrine 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.”

In Mr. Carpenter’s case, the government argues that location data is different from content, which is protected by the Fourth Amendment’s guarantee against unreasonable searches. But that distinction is increasingly meaningless. The major cellphone carriers receive tens of thousands of location-data requests from law enforcement each year, and for an obvious reason: That information is extremely valuable, especially when combined with other data sources to paint an even more detailed picture of a person’s life. Mr. Carpenter’s location data, for example, didn’t just link him to the robberies; it revealed when he slept at home and when he didn’t, and the church he likely attended on Sundays.

In 2014, Chief Justice John Roberts Jr. wrote that cellphones have become “such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.”

The third-party doctrine needs to be reimagined in light of Americans’ new relationship to technology and their rapidly changing expectations of data privacy.

If not, Congress should follow what several states have already done and pass legislation requiring warrants for phone-location data.

Back To Top