A Major Victory for Privacy Rights

Category: Privacy

Law enforcement agents need a search warrant before they can seize a person’s historical location data stored by his cellular service provider, the Supreme Court of the United States (SCOTUS) ruled on June 22, 2018. The ruling was hailed as “the most consequential privacy decision of the digital age” by the American Civil Liberties Union. Read on to learn why...

4th Amendmendment Lives, says Supreme Court

The case before the Court, Carpenter v. U.S., involved a suspected burglar who was convicted based upon months’ worth of location data obtained from his phone company without a warrant. The data gave the FBI nearly perfect knowledge of where Timothy Carpenter went, what he did, who he associated with, and more. Indeed, Chief Justice John Roberts wrote in the majority’s decision,

“(W)hen the Government tracks the location of a cell phone it achieves near perfect surveillance, as if it had attached an ankle monitor to the phone’s user.”

The Court rejected the government’s long-successful argument that when a person voluntarily lets a third party store data about him, the 4th Amendment does not protect him from the warrantless seizure of that data from the third party. This legal doctrine was established in the mid-70s. Today’s ruling, the details of which can be read at SCOTUSBlog, recognized that times and tech have changed dramatically.

4th Amendment and Cellphone Privacy

“There is a world of difference between the limited types of personal information addressed” by the old dogma, “and the exhaustive chronicle of location information casually collected by wireless carriers today,” the decision reads. Forty years ago, “few could have imagined a society in which a phone goes wherever its owner goes, conveying to the wireless carrier not just dialed digits, but a detailed and comprehensive record of the person’s movements.”

The Court ruled that the vast amount of location data the FBI collected from Carpenter’s phone company - over 13,000 data points spanning several months of his activities - painted such an intimate and extensive picture of his personal life that it deserved the 4th Amendment’s protection against warrantless seizure. Therefor the location data could not be used to prosecute Carpenter.

The Carpenter ruling applies only to location data collected and stored by a cellular service provider. But the Court’s reasoning will be applied to a virtually limitless range of cases in which third parties collect and store any type of data about an individual. Armed with this decision, privacy advocates can argue that all the personal data that Facebook, Google, credit agencies, banks, et. al., collect about you is now off-limits to law enforcement unless it is obtained pursuant to a valid warrant issued by a court.

The 4th Amendment and Limiting Factors

The 4th Amendment to the U.S. Constitution states: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Note that the Court did not overturn the third-party doctrine outright. Instead, the Court decided that there must be a limit to the scope of personal data obtainable without a warrant, and that it was clearly exceeded in Carpenter’s case. Future rulings may decide that the government can use one data point, or a day’s worth of data points, or some other measure of data’s scope, without obtaining a warrant.

The limiting factor seems to be, “Does the scope of data collected amount to invasion of the person’s privacy?” If, for example, Carpenter’s location data revealed that he (or his phone, at least) was regularly at a particular place at the same times a drug rehabilitation group held its meetings at the same place, it would be reasonable to infer that Carpenter was a drug addict in recovery. That inference, arguably, would be a private matter deserving of the 4th Amendment’s protection, so data which supports the inference would have to be seized pursuant to a court order that complies with the 4th Amendment’s requirements.

Yes, it’s complicated, and there are many wrinkles to be ironed out case by case. But the government’s long-standing position that “all your data are belong to us” is no longer acceptable in court. This a huge victory for privacy rights in the United States!

As for Timothy Carpenter, he may be a hero to privacy advocates, but it seems he's no angel. A description of his role as ringleader of a gang of armed robbers can be found on this page from Findlaw.com. Carpenter was convicted and sentenced in April of 2014 to 116 years in prison, and even though he won his case at the Supreme Court, he will likely remain incarcerated.

That's because of the "Good Faith Exception to Exclusionary Rule." According to the Legal Information Institute, The Exclusionary Rule bars the use at trial of evidence obtained pursuant to an unlawful search. If officers had reasonable, good faith belief that they were acting according to legal authority, such as by relying on a search warrant that is later found to have been legally defective, the illegally seized evidence is still admissible under this rule.

The ACLU argued Carpenter’s case before the SCOTUS, and deserves much of the credit for this victory. Your thoughts on this topic are welcome. Post your comment or question below...

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Most recent comments on "A Major Victory for Privacy Rights"

(See all 22 comments for this article.)

Posted by:

25 Jun 2018

I guess I just don't get it. I never have anything to hide, so who cares if someone wants to get my exact whereabouts for the past week, month or year? It wouldn't bother me in the least. Let them have at it! So what Bob's post tells me is a terrrorist, murderer, rapist, criminals of any kind can hide their whereabouts now from law enforcement. Is this really a good thing??

Posted by:

25 Jun 2018

@Ron@Brian......Right on...No wonder the rest of the world views the USA as a country of outlaws protected by thieves in power.

Posted by:

25 Jun 2018

I agree with Ron and Brian. This is only going to impede law enforcement. The time that may be wasted obtaining a warrant while on the trail of a suspect could be put to better use--like trying to track the person down via phone activity. Sorry, but if someone has nothing to hide this should not be an issue.

Authorities can track my activities at any time. This world is becoming more dangerous and we need to use the tools at our disposal as quickly as we can. Would supporters of this new ruling agree if they are on the trail of suspected terrorists?

Posted by:

Mary in SC
25 Jun 2018

All it takes is a Richard Nixon or J. Edgar Hoover or any other power-hungry government official willing and able to bend the law to their own purposes. As for me, I want the full protection of the law for me and mine. Now and forever.

Posted by:

25 Jun 2018

Recently here in Punta Gorda, FL there was an article by a real estate agent who was approached by an insurance company claiming that he had more drivers on his insurance than he claimed. They said knew because he regularly received mail at his address for a 'Mr. Jones' and so OBVIOUSLY Mr. Jones MUST be living at that address! (No, Mr. Jones was out of town and asked his real estate agent to temporally receive and forward his mail).

He did a bit of investigating and found that the USPS - that's right - the UNITED STATES POST OFFICE sells to anyone who pays for it a daily listing of your incoming mail! No kidding!

That includes ALL mail addressed to you! From doctors, lawyers, hospitals, insurance companies, etc., etc. Cool, huh?

Talk about an invasion of privacy! All done by an overarching government 'protecting' you and not letting the little ol' Fourth A get in the way of doing so.

Did you know that I (or anyone) CAN BUY from the USPS a listing of your incoming mail? Thought not.

- L -

Posted by:

25 Jun 2018

And without the cell phone evidence, would Carpenter still be out leading his gang of armed robbers? And possibly, by this time, leaving a few bodies behind? Way to go ACLU! Thank you for "protecting" me.

Posted by:

25 Jun 2018

So sad to see how many here completely fail to understand the necessity of the 4th Amendment and how important it is to our very freedom.

Do you really trust the people that would have access to this information not to misuse it? Or, have we become a nation so fearful for our safety that we are willing to trade away our freedoms?

Don't know which is the more frightening,. ...Sigh!

Posted by:

Mark H.
25 Jun 2018

I agree with the decision made by the Supreme Court. For those that say that law enforcement will be hampered and terrorists and criminals will have free rein to carry out their plans, I ask "When did we become a nation of Chicken Littles?".
Yes, there are bad people out there. Ceding power to the government to become more intrusive in our private affairs will lead to more serious consequences down the road. I, for one, do not support trading liberty for security.

Posted by:

Big C
25 Jun 2018

One thing that most of you who are griping about this decision are ignoring, is that the Supremes did not say this data was completely out-of-bounds. It just requires a warrant -- listing what they are looking for and what legitimate reasons they have for getting it. The police can still get this information, they just need to justify it before a judge, the same way they have to justify it if they tap your phone.

Posted by:

top squirrel
25 Jun 2018

It's an old question: Is it more important to catch this crook, this time, or protect the principles that supposedly protect the public.
To me it's clear: you have to protect the principle first, because that has far more applicability than a single case and supersedes it in importance. Better a crook or two should escape than live in a police state, in which you'd have to protect yourself from police as well as criminals.
If you disagree you might as well say racists and Nazis (and others you may disagree with) have no right to free speech or the other freedoms in the Bill of Rights because they are BAD PEOPLE.
American cops violate these principles all the time. It is to the interest of every honest person out there to pull them up short. Even if it never comes to your being involved. And even if as a result of upholding the principle someone you know damn well is a crook is going to go free.
Please observe: if crooks go free it is only because the authorities have failed to bring to bear good evidence that has been fairly obtained. They should put the donuts away, get off their ass and go find hard evidence.
I am sick of hearing cops whining about "the system" coddling criminals when the whole thing boils down to their laziness.
The Bill of Rights (including the Fifth Amendment) was put there for a purpose. The founding fathers would rather put up with a few criminals escaping justice than having to fight against your own government. They knew very well what that was like. And that you can't have it both ways.

Posted by:

25 Jun 2018

Living in the UK, this decision doesn't directly affect me - but the ramifications might well be significant. Facebook, ebay, PayPal, and Google, to name but a few, have a major presence in the USA, but their subscribers are worldwide. It's good to know that the various law enforcement agencies in the US may well now be restricted from digging into anyone's online presence without lawful authority.
And for those who think it will lead to criminals being given greater freedom, it's really just an extension of the wiretap regulations which need probable cause and a court order to be enacted. Why should cellphone locations and online traffic be any different?

Posted by:

mike wax
25 Jun 2018

you law-abiding rednecks may not have anything to hide, but the government sure as hell does.
here on planet earth, where i live, the government perpetrates crimes against innocent individuals all the time. the only difference is, they do it with absolute impunity.
sorry to hear that you guys are so offended at the rule of law. maybe that's why we have law to begin with.

Posted by:

25 Jun 2018

At first, I thought that the SCOTUS was wrong, in their decision. Then, I thought about long and hard. I realized that law enforcement MUST get a warrant to search your house. . .And that makes total sense. Therefore, searching one's cell phone needs to have a warrant, too.

When, most people think this through, they will come to realize that the 4th Amendment is for all of our protection and the cell phone is just part of our properties.

Now, law enforcement must get a search warrant from a judge, showing probable cause, to search anyone's cell phone and it honestly is no different than requesting a search warrant for your home.

Law enforcement has made some really bad mistakes when they have forcibly entered into a home, looking for contraband, guns, drugs and etc.. The worst of it, is that they frequently do not even apologize when they have done their damage to the wrong house! Yes, they have search warrants when this happens.

This happens because they don't really get the right information, before getting the search warrant. Sometimes, law enforcement is just to anxious to do what they want to do and do not check out their facts properly.

Bad things will still happen, but obtaining search warrants from Judges, for cell phones is really a good thing in the long run.

Posted by:

Robert T Deloyd
25 Jun 2018

Good or bad it's the law according to the 4th Amendmendment...

Posted by:

25 Jun 2018

Good job by the SC on this one. You only need to go back to the initial passing of the Patriot Act to find misuse of search and seizure. Bush's AG Ashcroft began subpoenaing records of patients who had abortions from doctors. How did those requests protect us from terrorists?

Posted by:

Jay R
26 Jun 2018

John, Perhaps it is only one's age from conception that allows abortionists to be labeled as terrorists.

I, too, have nothing to hide, but I firmly believe this to be a good decision. Is obtaining a search warrant so hard? (I don't know, but I don't suspect that it would be in such a case of wanting to determine a persons whereabouts over an extended time.) I am sure that with today's technology, the police wouldn't even has to wipe the chocolate glazing off of his fingers. He could just look at this phone and say, "Google, call Judge Judy."

Is the government not to be trusted? How can one think this in the face of all the good the civil asset forfeiture has done? And if that it a problem you,then certainly some Native Americans can verify the government's trustworthiness.

I'd better quit before I offend everyone. I will close with another big THANK YOU to Bob. I hope that you keep up the good work.

Posted by:

William Elwood Hall
26 Jun 2018

don't think you pro government people realize just what you are being protected from in the 4th amend. Illegal search and seizure extends to you as a person so if you give up that protection you can be arrested and detained indiscriminately.

Posted by:

26 Jun 2018

It dismays me to see so many commenters here willing to surrender their privacy.
Do they not understand that surrendering privacy surrenders liberty?
Do they not understand that privacy is a defense against tyranny?
Do they not understand how thin is the line between seizure of private knowledge and seizure of persons?
To you who would surrender your privacy, I say visit a concentration camp and discover how the victims were found.

Posted by:

Steven A Horn
27 Jun 2018

Bob, I am relying on your report rather than on the decision itself. But if Roberts CJS ruled as he appears to have done, the decision should be welcomed. I am less impressed with the good faith exception argument for admitting the evidence which convicted Carpenter but note that this argument cannot be raised in another case now that the decision is law. All in all, this is a good result.

Posted by:

Michael C.
03 Jul 2018

SC ruling or not . . . I only use burner phones for EVERYTHING.

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