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  • Ashley N. Baker

Supreme Court to Review Cellphone Privacy

Map of Cell Towers Within Two Miles of Supreme Court

The Committee for Justice applauds the Supreme Court’s decision, announced Monday, to review the Sixth Circuit's ruling in United States v. Carpenter. "This case provides the Court with a much-needed opportunity to ensure that the principles behind our constitutional right to privacy are preserved in the digital age, as rapid technological advancements challenge courts' ability to apply older Fourth Amendment principles and precedents," said Committee for Justice (CFJ) president Curt Levey.

Ashley Baker, Director of Public Policy at CFJ, explained, "The central question in Carpenter is whether law enforcement agencies can use the third-party doctrine, an exception to Fourth Amendment guarantees, and the lower standards of the Stored Communications Act (SCA) to access location records from an individual's cell phone provider – effectively turning that individual's cell phone into a tracking device – without first having to obtain a search warrant. The Court’s decision will undoubtedly also have ramifications for other types of technology, such as the privacy of data conveyed to internet service providers (ISPs) or shared through the Internet of Things (IoT)."

"The third-party doctrine, often used in cases involving cell phone privacy, allows law enforcement officials to access an individual's private data after it is 'voluntarily' conveyed to a third party – such as service providers including AT&T and Verizon – without having to satisfy the probable cause standard otherwise needed to justify a search, says Baker. "Carpenter provides a good opportunity for the Justices to revise the third-party doctrine, lest it swallow privacy rights in the digital age."

"By broadly interpreting the third-party doctrine, many lower courts have sidestepped the issue of what is a reasonable expectation of privacy in our increasingly connected twenty-first century society," explained Baker. "Instead, the Supreme Court should use Carpenter to face this question head on."

In Carpenter, the Sixth Circuit reasoned that cell phone users forfeit their Fourth Amendment protection when they disclose their location to third-party service providers. Because the users are assumedly aware that their calls and messages are routed through the provider's cell tower, which provides location information, the disclosure is said to be voluntary. "Even if this description is accurate in the formal sense, the Sixth Circuit intentionally overlooked a central reality of the modern age, namely that the only way not to share our location data is to never use a cell phone," added Mr. Levey.

He concluded that "It is clear that Fourth Amendment doctrines need to be updated to account for the realities of the modern world. Carpenter gives the Supreme Court a golden opportunity to do exactly that. Opting out of modern society should not be a prerequisite to enjoying the protections of the Fourth Amendment."


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