Carpenter Nails It.


The Supreme Court said today that just because you carry a cell phone doesn’t mean you’ve given up all your privacy rights.

The Court held 5-4 that the practice of law enforcement being able to demand from cell phone service companies the record of where you have been (because cell phones transmit their location to cell phone towers essentially continuously), as a general investigative tool, is unconstitutional. From now on, barring exceptional circumstances, investigators will have to obtain a warrant to acquire that information, because it is subject to 4th amendment protections.

Key to the decision was this language from Roberts:

“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.”

The decision is here.

The ruling carves out an exception (how large remains to be seen) to the “third party doctrine.”  As NPR put it

At oral arguments in November, the justices seemed torn about whether to break with the so-called third party doctrine. Adopted decades ago, that doctrine says that there is no reasonable expectation of privacy when an individual shares information with a third party — for example, the phone company, which knows what telephone numbers the individual calls and receives. Therefore, police do not have to get a search warrant to gain access to those numbers.

But in recent years, the justices have expressed discomfort with that rule of law as applied to the modern digital age, when cellphones carried in a person’s pocket can track locations day and night, and when email and text addresses tell a huge amount about an individual’s contacts and lifestyle.

Whether and how this decision might apply to ubiquitous surveillance coupled with facial recognition technology while a person is out in public, or email records, remains to be determined.  It does provide a glimmer of hope.


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