Every cell phone user — and that’s 95 percent of Americans — has an interest in the imminent Supreme Court ruling on whether the government needs a search warrant to access individuals’ cell phone location history.
So does the tech industry, which depends on consumer trust in its products to thrive. The stakes are high enough that Google, Facebook, Apple, Twitter and Cisco joined forces on a friend-of-the-court brief begging the court to recognize “the changing realities of the Digital Age.”
One of those realities is that it’s virtually impossible to live a full life in the 21st century without some form of a smart device. Users shouldn’t have to give up their basic Fourth Amendment privacy rights when they make calls, write texts and emails, interact with friends, make purchases and access their medical and financial information.
Law enforcement already has a legal tool to acquire information from smart phones when it can show “probable cause” that the data will provide evidence in a case. That tool is a search warrant. The Supreme Court has ruled that the government needs a warrant to search individuals’ actual phones.
But the same law enforcement agency can acquire all of a customer’s personal data without a warrant by simply calling the person’s provider — AT&T, Verizon, Google — and asking for any historical records they have on hand.
Police made more than 100,000 of those requests in just the past year, allowing them to access users’ information stored on phone companies’ and search firms’ records.
This is wrong on so many levels. It’s especially frightening in today’s political atmosphere because of the Trump administration’s disdain for constitutional rights.
The case before the Supreme Court involves a 2011 Detroit robbery investigation. A cell phone service provider gave police — without a warrant — all of the cell phone records it had over a four-month period for Timothy Carpenter’s cell phone. Police accused Carpenter of organizing a series of robberies with accomplices. He was convicted, in part because of the cell phone evidence.
The issue isn’t whether he did it. It’s whether the government has the right to access individual users’ historical digital data without asking a judge to grant a search warrant. Ironically, it seems likely that a judge would have granted a warrant in this case.
The government claims it does not need a warrant under one of the more antiquated legal theories in use today, the Third-Party Doctrine. It stems from a 1979 case in which the Supreme Court ruled that a robbery suspect had no expectation of a legal right to privacy of his phone records because he had “voluntarily” turned them over to his phone company.
The court should understand that line of reasoning has no validity in today’s world. The alternative is allowing the government to access every detail of 95 percent of Americans’ lives without any legal way to stop it.
— San Jose Mercury News
