Carrying a cellphone creates a "historical log" of movements, privacy expert says

James Marshall
June 23, 2018

In a colossal victory for privacy advocates, the Supreme Court ruled today in favor of requiring law enforcement to have a warrant before accessing mobile phone location data from telecom providers.

For law enforcement, cellphone data is a powerful new tool. Cell tower records spanning 127 days and that investigators got without a warrant bolstered the case against Carpenter. "The question is can they force you to provide your passcode or can they force the cell phone to provide passcode so they can search the cell phone".

However, the Supreme Court's decision today recognizes the lack of true consent (when it comes to data-sharing, at least) in our modern digital age. United States, the court ruled in favor of robbery suspect Timothy Carpenter, whose cell phone records the Federal Bureau of Investigation seized without a warrant under the Stored Communications Act.

This decision leaves a lot of room for the United States government to subpoena data, however especially as the Court decided that law enforcement will still be able to gather data without a warrant in cases where they "need to pursue a fleeing suspect, protect individuals who are threatened with imminent harm, or prevent the imminent destruction of evidence". The Trump administration said the lower court decisions should be upheld. With the help of the American Civil Liberties Union (ACLU), Carpenter sued and challenged the conviction, arguing investigators violated his privacy because investigators didn't get a warrant for his cell phone records. In a "friend of the court" filing for the case, major technology companies such as Apple, Google and Microsoft argued the importance of adapting the Fourth Amendment to today's digital landscape, writing: "When customers transmit personal data to technology companies. they reasonably expect that data and the metadata generated alongside it to be securely stored and remain private as to the rest of the world".

The administration relied in part on a 1979 Supreme Court decision that treated phone records differently than the conversation in a phone call, for which a warrant generally is required. The cell phone companies keep records of all those towers communicating with your phone and when those communications happened.

Roberts said then that a cellphone is nearly "a feature of human anatomy".

"The Government's position fails to contend with the seismic shifts in digital technology that made possible the tracking of not only Carpenter's location but also everyone else's, not for a short period but for years and years", Roberts wrote.

Even with the court's ruling in Carpenter's favour, it's too soon to know whether he will benefit from Friday's decision, said Harold Gurewitz, Carpenter's lawyer in Detroit. In a string of Radio Shack robberies, courts convicted Timothy Carpenter of the crime based on evidence obtained from is cellular provider.

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