Login | December 12, 2017

SCOTUS to hear Ohio cell phone privacy case

RICHARD WEINER
Technology for Lawyers

Published: December 1, 2017

The clash between old laws and new technology, filtered through the Fourth Amendment, will come into focus in a late November case before the U.S. Supreme Court.

Carpenter v. United States, Docket No. 16-402 (6th Circuit, 819 F.3d 880) centers around a criminal conviction for crimes committed in Ohio and Michigan by one Timothy Carpenter. Part of the evidence presented by the state included cell phone tower information from the two states, obtained without a warrant from the cell phone providers pursuant to the Stored Communications Act (SCA) of 1986.

The stated issue before the Court is: “Whether the warrantless seizure and search of historical cell phone records revealing the location and movements of a cell phone user over the course of 127 days is permitted by the Fourth Amendment.”

So that basic question brings to the fore a number of underlying issues that the Court will have to meet and which it may, in the process, bring cell phone records discovery into the second decade of the 21st century from the 7th and 8th decades of the 20th century. Or not.

The most basic issue is one of the limits of the tracking ability of cell phone towers. Unlike more modern and accurate GPS-based apps (say, Google Maps), cell tower information is only accurate to within a certain range, and can’t, in and of itself, pinpoint an individual phone’s location. Triangulating several cell towers can make it closer, but that wasn’t done in the Carpenter case anyway, so that’s moot (or “mute” as somebody I once knew called it).

Another underlying question the Court can meet, if it wants to, is whether or not the SCA should even still be in effect at all, given that it was written when “stored communications” meant emails and recordings. The enormous amount of data now on file everywhere for everyone may, from a strictly technological perspective, render the SCA unconstitutionally vague altogether.

There is also the question of whether tracking someone using this very vague means—cell towers—for so long (127 days) is constitutional.

There also may be questions of the distinctions between information divulged to an individual (which would be obtainable under the “third party doctrine”) and one where the information is sent to cloud storage without the participation of the individual.

And there’s more. Big case, and we’ll keep an eye on it.


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