In the NYT reporting on this, dozens of commenters roll their eyes at the idea that "criminals" are have rights, privacy or otherwise.
But that's not what this is about. In order to *determine* that this man was a criminal, the police suspended his rights (obtained detailed location data without a warrant issued by a judge).
A child would understand that these things are out of sequence. Is he a criminal because he was convicted or was he convicted because the government deemed him a criminal?
Sad day when a large chunk of the American public can't think its way out of this circle.
3
Anyone who thinks their phone calls, emails or messages are "private" is just plain dumb - just like people who rob stores. Maybe we should do more to find the people who are stealing identities of technology consumers, not protect those who would do harm with their technology.
7
I read the article and then the comments and see that everyone is caught up with the issue of the cell phone. First of all let's not forget that the cell phone issue past the test of "reasonable grounds to believe" in the lower courts plus witnesses indicating that Carpenter planned the robberies.
I fully understand the privacy arguments. What I have trouble with is that nobody is talking about the victims. Everyday shoppers were huddled into a back room at gunpoint. How terrifying must that have been. I am sure it was life altering for some. The cellphone evidence would have been one of the last pieces of evidence collected. The police would have acquired that information using other evidence therefore meeting the standard of "specific and articulate facts showing there are reasonable grounds to believe".
Since the crime was so serious, with a strong possibility of violence I do not have a problem with the collection of cellphone gps information. In future cases, where time permits the police should rely on warrants to obtain therefore ensuring a stronger case.
6
All legal issues aside, I'd say that these crooks are not the brightest bulbs in the chandelier.
With regard to warrants, wouldn't that have been difficult in this case? Presumably the analysis of vast amounts of data lead to the culprits, who may not have been suspects until the trail of bread crumbs lead to them. I don't see where any specific rights were violated by this "data search." This is very different from searching an individual's cell phone, or digitally tracking a specific suspect without a proper warrant. As in all conundrums of this type, the courts will have to give careful thought to the ramifications of rapidly changing technology.
3
History has proven time and again that the thinking among law enforcement tends to be: heads we win, tails they lose.
As a result, there are the various Constitutional Amendments that limit the power of law enforcement. Left to their own devices, as this case proves, law enforcement will go overboard and "do what it takes". That's not justice.
So I hope SCOTUS rules in a manner fitting the 21st century (and beyond). It will thus serve to guide the rest of the world on how to look at similar cases.
3
Yes, we need protection from from the government. But we also deserve protection from Google, Apple and Facebook. It’s easier to understand invading my privacy to solve a crime than it is to accept snooping in order to sell me a new mattress. At least one transgression serves the public good.
5
I would rather think, against Justice Samuel A. Alito Jr, that Society’s expectation is that law enforcement would do whatever they need to pursue criminals, even recording their movements for years. But if suspects turn out to be innocents Society's expectation is that law enforcement would do their absolute best to ensure all recording is fully destroyed. Society is (or should be) more concerned with the bad usage of their privacy data by private companies than by public servants which protect our safety. Actually, the ones who raised the question in this case are the lawyers of a wise criminal. Take this into account.
2
This is one of those close to home issues that drives us crazy, because the high courts are deciding on how much privacy we can expect and under what circumstances. More personal privacy will certainly lead to a less effective police force.
The police aren't magicians...far too many crimes go unsolved as it is. Criminals aren't restrained by court decisions. Every supposed privacy protection for us, is a protection for them too. Let's not get caught presuming that the police have an equally efficient alternate means of finding a criminal or tracking him...and in the same breath providing meaningful evidence in court of the criminal's guilt.
With the crime rate like it is, our police forces need every advantage they can get in order to protect us. And, despite what the media and certain fringe activist groups spout off about...they are the thin blue line that separates us from the criminal element in our country.
I'm not saying that we should allow free range to anyone...but a need is brought on by necessity.
Remember...that massive data collection...stopped robberies at Radio Shack...and probably a lot more criminal activity that we aren't aware of. And it was on one man only...not all of us...just the suspect.
3
Even though I have resumed my donation to ACLU because of Trump's immigration and other bad behaviors against the Constitution, cases like this is why I walked away from supporting for more than two decades.
I understand sometimes fizzy cases are the most important to establish precedents; however, a lot of times ACLU is wasting its resources for cases that would either yield no results because of narrow ruling or produce results causing more harm than good.
For Constitution wonks, these cases may be fun and game threading the needle; but for most regular folks, there are genuine wrongs to be righted
3
Why to cell companies retain any data for calls covered by a plans base fee? In other words, if my plan is unlimitrd, what value is their to the phone company when making a call.
If our government ever goes toward tyranny, this type of information would allow it to identify its political enemies by both their communications and co-location.
3
Phone companies will need to retain the records - other than selfish reasons - in case customers disputing charges.
While government using these records for political reasons is possible, it is not the case here. Conspiracy theory is the worse enemy in our times
2
I don’t think we talking conspiracy theory here.
Donald Trump has publicly groused about his frustration that the Department of Justice isn’t beholden to him to do his political bidding.
That’s what him wanting the DOJ to pursue new investigations of Hilary Clinton is all about.
3
Will these dopey crims never learn? Cellphones must go into aeroplane mode prior to the commission of a crime. Sheesh.
1
It's not clear to be what even led the government to Carpenter in the first place prior to obtaining the phone records. That will prove to be important in determining if they needed a warrant or not. I believe the inconvenient truth here is this is nothing more than a logical extension of the Smith case, although a close call. In the end, a 5-4 decision in favor of the government.
2
Being at any one place at any one time cannot ever be proof enough by itself to incriminate. After all, if everyone in the stores had a cell phone too when the robberies occurred and thus, are just as "guilty" in the sense of location-as-evidence.
It does not stand to reason.
Same cell # repeatedly turning up in vicinity of a variety of Radio Shack robberies is far more than simply capturing a cell # one time from an innocent / legitimate customer who was forcibly herded to a back room at gunpoint inside a radio shack. Kudos to Law Enforcement for going the extra mile in attempting to resolve theses cases & ultimately saving the lives of others by simply looking at a series of repeated numbers. Keep it up.
3
So, okay, suppose the supreme court rules that we do have an expectation of privacy as far as the government goes, what about Google, FB, the NYT, and every other company that tracks us? Every time we step into a doctor's office, we are asked to sign away our privacy. If we don't, no service. Same with all these companies. And this is called, 'voluntary.'
17
Oh man, you're singing one of my favorite pet peeves. I'd imagine there are still Gov web sites that "strongly advise" *not* giving away one's SSN to anyone because no one needs that number aside from your own payroll dept...yet find me a physician, dentist, etc., who does not demand it or, as you say, "no service."
Personally, I take it as my civic duty to provide incorrect information whenever I can. And, the older I get, the easier it is to do so, consciously, unconsciously, or some measure of both.
1
It's easy to think "Well, it's OK to do this when the person is a criminal." but determining whether he was a criminal or not was dependent upon the phone records. At the least a warrant should be required, with a judge determining if there is probable cause.
Without some kind of check, innocent people who just happen to be near a crime location could be put under surveillance (even though, as others have pointed out, we're being watched by privately owned security cams almost everywhere we go).
Plus, things go wonky in technology all the time (I work in IT). You can get on the wrong list through some kind of human or data processing error and your life could be turned upside down.
What amazes me is how much private information people are willing to give away via Facebook and other social media. Or those who have a device like Amazon's Alexa in their homes. Sure, it makes ordering something so easy...because it's listening to you all the time.
5
I can launder money inside the country and outside the country
All legal
So just where is Law and order???
1
The quaint belief that the Fourth Amendment still applies in the post-Cheney/Bush world is just cute.
Anyone who honestly thinks that their electronic records are not an open book to the police, FBI, NSA, CIA, etc. is simply hopelessly innocent. If you put anything at all that is important to you on your cellphone, you must assume that at some point the government is going to be able to access it.
How many TV shows have you seen where the guy that does not want to be tracked buys a 'burner phone' with cash?
1
If a Congressman or other government official is suspected/accused of a crime because a political opponent "dropped a dime" on him/her, could the police go after phone records in their investigation? Are Congresspeople and Supremem Court Justices themselves ready to have to defend what they say or where they've been, if they have no expectation of phone privacy?
And didn't Donald Trump say "I never carry a cell phone or use email"?
1
What is the problem with requiring the authorities to have a warrant, based on probable cause? The third party rule seems like another clever justification for setting aside the fourth amendment, which has been the trend for a long time now.
9
Well stated.
1
Radio Shack? Wasn't that the company that required its sales people to badger their customers for personal information such as addresses and later emails?
1
I don't know what's more shocking that the Fourth Amendment may protect a felon or that Radio Shack is still open in 2017.
The case is based on thefts from Radio Shack ALL THE WAY BACK IN 2010!!! There should be a requirement that you read all the way down to the bottom of an article before you can comment as is necessary for some EULAs.
1
"Technology companies including Apple, Facebook and Google have filed a brief urging the Supreme Court to continue to bring Fourth Amendment law into the modern era."
Think of the possible precedent: SCOTUS could possibly bring the 2nd Amendment into the 21st Century.
Nah...
3
I hate the idea that thieving thugs get the benefits of technology. But given the alternative -- further erosion of privacy -- I'd rather see the court say to the cops: no you can't, not without probable cause and a warrant issued by a court. It is enough of a horrible intrusion when the Bush and later, the Obama Administration continued warrant-less and limitless collection of phone call data. I don't recall voting on tossing out the fourth Amendment.
3
Wow, a legal case that is scary either way the decision goes. If they say we should have no expectation of privacy on a mobile phone then govt agencies can scoop up any infor they want if they listen long enough unless we always speak in code or something like that. But if criminals can hide behind privacy laws just by using a mobile phone in planning crimes, unless the police can imagine ahead of time every source of information they might need and get a warrent related to that specific mode of communication.
1
Well said.
So, we allow private enterprise to collect / document and sell, to those who can afford it, every documented minute of our existence, but we have a problem with the police wanting to look at someones phone records because they they think that person may be a suspect...ugh...really. We are a bunch of dummies.
2
One might seriously question the 1979 decision as being in error.
To surmise that by dialing a landline telephone the person within the walls of his home, where privacy is assumed and granted, that the numbers dialed are furnished to the phone company solely for the purpose of completing a phone call. At the time, and currently with any sort of communication device, there are either no other choices to complete that call, or limited choices with cellular phones or emails.
To assume that, in 1979, the citizen sitting in their house knew that their dialing was being recorded borders on clairvoyance.
And if one were attempting mischief, to dial knowing that he was furnishing information that would be helpful in convicting him would obviously lead to alternative means of communication.
To think that no assumption of privacy existed and that no warrant was needed is the first step in this whole sequence of erosion of privacy.
4
Professor Kerr is right. This is clearly not a 4th amendment case. We are relying on the courts when we should be looking to Congress. Times have changed, we surely have to update our laws to meet the realities of the digital age.
2
The question to ask is whether the information being reviewed really belongs to the person being investigation or did he/she gave up this information when you created the apple/google/etc account used to run your devise. Does the information then not belong to the companies and they can choose (or not) to give it away if not required by a warrant? Maybe the question should be, who owns the information?
2
Tis also has implications for the good in society, such as the ability to track missing persons and the movements of suspects associated with them. This is a hard one as I can see both sides and the law, right now, would have to be changed to use a different standard than exists.
Tell your children, if you do it digitally expect it to be seen by others and, possibly, used against you, civilly or otherwise.
The Fourth Amendment the right of the people to be secure in their "persons, houses, papers, and effects." People have no constitutionally protected security interest in the records the phone companies create. The Constitution doesn't deal deal with all issues. This is one for Congress.
1
The writings by our country’s founders spoke of the Constitution as a living document, amenable to change.
Of course we need to update to the world we live in. Otherwise, why have a Constitution at all?
1
The loss of privacy is engendered by the internet, nurtured by the likes of Microsoft, Google, Facebook etc. Your ISP records every site you visit. The sites you visit record every keystroke you make.
There is no true privacy in a world that records our public movements and our private transactions. It is virtually impossible to go anywhere un-recorded on a security camera, plotted by satellite following your cell phone signal, or picked up photographically at a traffic monitored intersection, complete with time stamp. In short, our expectation of privacy has grown smaller over time.
My expectation of REAL privacy now is that when I am inside my house and am not connected to an ISP I have privacy.
Nevertheless, in the eyes of the law I have a reasonable expectation of LEGAL privacy if my privacy cannot be invaded without a warrant. The medium is irrelevant:
Whether it is written, spoken or tele-communicated, the fourth amendment guarantees our right to protection from illegal search and seizure. Every innovation in technology since the 18th century has enjoyed the same 4th amendment protections as quill and parchment. Before you go rooting around in someone's private stuff, you need reasonable suspicion/a warrant.
So even if in reality I can't shut off Cortana, I have a reasonable expectation that legally, the government won't access my data except where warranted.
Let's hope the SC agrees.
2
This is it in a nutshell. Well said.
Thank you.
I anticipate the Court will distinguish between: (1) an entry of data a citizen makes into a smart phone as being protected from government intrusion [analogizing such entry to "pen and paper"], and (2) location data being generated solely by the carrier [which is not an entry by the customer].
After making such distinction, the court will probably rule there is no Fourth Amendment protection. On the other hand, the Court might comment that if the data were in the form of a calendar entry that a different interpretation might apply.
On the other hand, if the person before the court were a person who was a wealthy politician accused of being at a billionaire's home accepting a bribe . . . . Well who knows?
But expect - obtaining data solely generated by the carrier does not fall within the protection of "persons, houses, and papers, and effects," unless somehow the court gives new meaning to the word, "effects."
1
"Perhaps it might get clearer if people disabused themselves of the assumption that the government and these agencies work for them."
furthermore, here is another notion people should disabuse. police are not civil servants but officers of the court(as distinguished from court officers)
1
I don't like what these armed robbers did, but I also do not like how the government can track us. I heard that they can also activate our cameras and our microphones and hear and see us in real time. They have drones in large cities that follow organized crime figures. I want to live in a society free of crime, but I also want freedom. Seems its hard to have both.
1
Congress is most certainly not better suited to protect our privacy. They have it up for sale right now.
1
If a person is traveling with a device in which its sole purpose is to allow said person to communicate with the outside world, thru a network accessible to the public, then noting its presence or location to me does not require a warrant. We cannot know the character of said communications, so we don't know what they were thinking, or doing at the time. It is very much akin to having an eyewitness that someone was in a particular place at a particular time. Nothing more. This is different from hacking a phone, which contains private content. The fact that the criminals were caught using said means only reinforces their usefulness, and I sure don't want a guy who planned multiple violent felonies to get off on a dubious technicality.
Interesting story.
My first reaction is that the court has to allow this criminal to go to jail, while clarifying that going forward, the government needs to get a search warrant to look into the digital fingerprints we leave by using cell phones and other digital devices, to protect the general public from governmental over reach.
David blogs at InconvenientNews.wordpress.com
4
That would be having your cake and eating it too.
2
My grandmother said on her death bed, "We are all connected." Do you want to be connected to everyone or time alone? Stop lights are frustratingly compromising. Same with privacy. This is why we has slush funds for rapists, comics, politicians and religions.
Basically in America today, criminals have more rights and receive more benefits than law-abiding citizens.
9
Here is the dilemma, as you think of it:
Criminals are, well, criminal. They don't obey the law. Therefore, every limitation placed on upstanding citizens and legal institutions grants greater freedom to criminals while taking freedom away from the law abiding.
While there is a sort of myopic logic to this, the conclusion of this reasoning is that there should be anarchy. For if we are to stay on an even footing with those who obey no laws, the only recourse is to abolish all laws.
I'm a law-abiding citizen and have always assumed I have the full protection of the Bill of Rights. If I'm wrong about that please let me know.
2
I hear this all time from conservatives who have no idea what it's like to be inside the system, and it's as incorrect now as it has always been. Only in the fantasy land inhabited by places like Fox News is what you said true.
The rest of the country is pretty clear that while those accused of a crime have certain rights so the full weight and might of the government can't just come crashing down on them without a reason, there is no place in America, no police station, no courtroom, no jail or prison where "criminals have more rights and receive more benefits than law-abiding citizens." Not a single one.
But if you believe that what you said is true, get a gun and hold up a bodega, then surrender to the police. Let's see if you have all those rights you fantasize about when you're doing 5-10 for armed robbery because your court appointed public defender has three times the caseload they can handle, and has been defending people for three whole months now.
You have no idea how quickly you will change your tune when that cell door slams behind you.
4
If the "conservatives" on the Court can make robbery legal, I'm sure they will. Heck, the white collar crowd gets away with it, everyday, already.
8
Stealing with a gun versus stealing with a pen.
2
It should be clear to intelligent Americans that no matter how the court decides on this, the NSA, CIA, FBI and other governmental agencies will continue to do as they please with regard to citizens' records and movements.
These agencies break existing laws daily. There is no reason to assume things will be any different if the court decides they can't do as they have been doing.
Perhaps it might get clearer if people disabused themselves of the assumption that the government and these agencies work for them. They do not. These agencies now exist to protect the government and the 1% from YOU, the rabble.
19
I have assumed for about a decade that I have no privacy. Look at how often, in the investigation of a high-profile crime, a suspect turns up on one or more surveillance cameras. Privacy is gone.
What we need to be concerned about is the use of data to frame people for crimes, including political "crimes". If we had a functioning democracy, it might be able to legislate protections. But we don't have a function democracy at this time, so I hope the court will be very restrictive. I'd rather let some criminals, and even terrorists, get away, than have everyone who opens his or her mouth about something controversial be subject to a digital frame.
13
Surveillance cameras capture images in public locations. That has nothing to do with trespassing on one's privacy.
The text is so clear! Nothing about "expecations of privacy"...just the right to be secure in one's life from warrantess searches.
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.
13
Well, the scope of that protection in the modern world is what led the Supreme Court to articulate the reasonable expectation of privacy rubric as automobiles and telephones, to say nothing of computers, cellphones and drones, did not exist when the Fourth Amendment was written and are therfore not mentioned in it.
As the professor quoted in the article says, this may not even be a fourth amendment issue. Another poster here compared the cell tower data to fingerprints and other personally identifiable sheddings that may be left at a crime scene. But there is also merit to the tech industry's concern “that consumers assume the risk of warrantless government surveillance simply by using technologies that are beneficial and increasingly integrated into modern life.” It's not just phones. If nothing else, this is an interesting case.
This is kind of funny. Apple, Facebook and Google claim that “No constitutional doctrine should presume that consumers assume the risk of warrantless government surveillance simply by using technologies..." And yet Apple, Facebook and Google can keep us under surveillance all they want to.
40
"No constitutional doctrine should presume that consumers assume the risk of warrantless government surveillance..."
That is the providers' strictly proprietary role. They are in deathly fear of an open-source trove of all their top secret data.
The constitution protects us largely from government. From corporations, not so much, and less every day, with ad-hoc mechanisms like the cfpb and fcc regulation of isp's under attack.
1
Apple, Facebook, and Google cannot arrest us over it and we are free to not use their services. Therefore, there is no constitutional violation.
1
Pretty soon the bad guys will have learned to turn their phone off, or to use a burner phone or a stolen phone. The problem is innocent people, who happen to have been near the scene of several crimes, just by accident. If they can't prove they are innocent, they're going to jail, for 116 years.
11
You must remove the phones battery to turn off the collection of data from your phone.
4
You can opt not to have a cell phone.
Indeed, ironic and hypocritical a that “technology companies including Apple, Facebook and Google” urge that “consumers [not] assume the risk of warrantless government surveillance” by using beneficial technologies, when “warrantless” surveillance is exactly what these companies are doing on a massive scale to citizens minute-by-minute. They will continue to claim that their surveillance is legitimized by disclosures in terms of service. Except the terms of service are indecipherable in many instances and avoiding constant surveillance by such companies would require that every individual become a technology expert and specially configure their lives to avoid surveillance by these companies. There is no arguing that the lines for government surveillance must be clearer. But for 99% of people (the non-criminals) their MUCH GREATER vulnerability is the private surveillance by commercial companies that Congress refuses to address. As we recently have learned, these private companies have used your personal information to micro-target ads to your devices that are tailored even to what colors most “push your buttons”. Subliminal advertising was outlawed decades ago, and yet what is happening now is a million times worse.
17
"the private surveillance by commercial companies that Congress refuses to address." What are you talking about? You agree to the "commercial companies' "terms and conditions when you sign up for their services.
Alexander Graham Bell would be forgiven for scratching his thick grey beard as he tried to understand this one.
5
It's like a credit card. Any expectation of privacy should lie with the person who lawfully owns the phone, not with the thief who stole it.
2
It's a two edged sword either way. If someone steals your credit card #, you are are happy the issuer knows within a day or two thanks to their monitoring and shuts it down. The downside is they have all the information about where you have been and what you have been doing.
I don't need a Chrystal Ball to see how this ends. Just the first step in tracking everyone 24/7. Thanks, Gorsuch. Thanks, GOP.
4
I hope Justice Gorsuch is a stauch supported of the 4th Amendment the same way that Justice Scalia was.
2
It's simple. Everything recorded in a private space is the property of the user and the user alone until due process kicks in. As much as I am a law and order guy, nobody, including the government, should have unfettered access to it.
Obviously, this is even more applicable to any corporation that captures data from third parties or uses it for commercial purposes with third parties.
6
If the tracking data collected by carriers is being sold by them, does that eliminate the expectation of privacy?
7
No, because the expectation of privacy only applies to government intrusions, not voluntary relinquishment of same to a commercial business.
As a law-abiding citizen, I want to live in a relatively safe society where criminals are usually caught, especially when they commit more serious crimes. At the same time, I expect a certain amount of privacy in my personal life. I don't think law enforcement should have unfettered access to phone records, GPS data and the like. But in the course of investigating serious crimes, with an appropriate warrant, they should be able to access a very narrowly defined set of potentially pertinent electronic records. If I were a criminal, I would be one of the smart ones who knows that my phone, my computer, my credit cards, my car, my fitness tracker and perhaps a few other modern devices in my life could potentially incriminate me. This is one reason I am not a criminal.
9
"We feel there's good reason to be curious about this person" doesn't seem like a strong enough rationale for poking around in someone's private life. Even "probable cause" feels a little weak. If there is solid reason to believe a person might be about to harm someone...maybe. As much as we all want bad guys to be caught, this is a very slippery slope.
Maybe the search of a cell-phone could be limited to "recent calls." Or in special cases, text messages. If authorities go rummaging around in search of other private details, the entire search is invalidated. It's a slippery slope.
2
Kerr is right: there was no unreasonable search because there was no search. The police obtained corporate travel records, no different in evidentiary value from motel, restaurant and gas station charges held by a credit card company.
The records also do not disclose information other than public movements: nothing about conversations, related persons, reasons for going to church.
There is "warrantless" government surveillance in many public settings -- security personnel, video cameras, police dogs. If you go in public, then your location and movements are public.
The idea that Congress is better suited to strike the right balance in anything is laughable. They can't even balance a budget.
11
Truth. Nor do they understand the implications of doing away with Net Neutrality.
On what legal basis do these companies have to disclose this information to the police without a warrant?
Surely all these businesses can — and should — simply reject these police requests. Why are these companies cooperating with the police?
By talking to enough people, the cops can go out and reconstruct the travels of a suspect. That's certainly not a violation of privacy. With cell phone tracking, it's like having many more witnesses. It's just a more efficient way of doing exactly what the police should be doing.
3
The US is way behind the EU when it comes to digital privacy and human rights on the web.
Personal information is personal property.
Google, Facebook, Apple, and all others seeking to make a profit off of the free taking of people's information should be stopped.
14
The real issue is what should society protect as private, not what others do with things that should remain private. Otherwise, there is no need for a warrant, because everything you do, every person you see, every thought you have, will be known by the government. Do people really want that? I hope not.
5
This could be a contract issue. What does the agreement between the telecommunications company and the customer provide? Does the former, under the agreement, have a right to sell customer-data to third parties? If so, what data? It seems to me the customer would have no "reasonable expectation of privacy" in the sellable data covered by the agreement, at least with respect to its purchasers.
Otherwise, I think the customer would have a reasonable expectation of privacy with respect to the data collected by the telecommunications company. Sure there is no reasonable expectation of privacy in one's presence in a public place but there would be in a record of one's presence in multiple public places over a period of time because it indicates patterns of personal behavior that could otherwise only be obtained by surveillance.
What does selling the data to another company for a legitimate business purpose have to do with giving that same data to the police without a warrant?
We are about to do away with the 4th Amendment altogether. ( especially as all of these lawsuits are brought in front of a conservative SCOTUS )
The next step will of course will be to just get it over with, and install microchips within our bodies, that will be able to track our every movement.
Cell phones are merely an extension of that premise.
1
For the greater good let's hope reasonableness prevails here. The records were obtained from outside the phone.
1
just as a curious question, what about our fingerprints and dna which we leave everywhere we go and touch stuff. . Isn't that giving up our privacy? It's like losing a coin on the street for anyone to pick up. If a cop picks the coin with my the fingerprint does that go against the 4th?
2
Congress is better suited to strike the necessary balance? Maybe, in a perfect world, but it seems ill equipped to accomplish much of anything these days. Meanwhile, it would be helpful if the courts could figure out a way to strike a balance which could be applied to each wave of new devices capable of effortlessly tracking people. For example, license plate scanners affixed to patrol cars (or wherever) are rapidly becoming more and more commonplace and the Orwellian implications are no less tangible than with GPS, cell phones, etc.
2
On the one hand, the "third-party doctrine" mentioned in this article seems to have it backwards because it's the government that's the third party in obtaining data from an individual's interaction with a phone company. On the other hand, the "agreement" between the individual and the phone company, which empowers the company to collect and maintain detailed data including location, is not really made on an even playing field. Usually the consumer is confronted with reams of carefully crafted fine print, no opportunity to negotiate and the choice between clicking the "agree" button and going without phone service.
5
I do not see any good reason why law enforcement should not be able to use all means at their disposal, especially technology that is right out there and can be used by cellphone carriers, to fight crime and track down perpetrators.
2
Government agencies from local to federal are independently collecting data (cellular and visual) from aircraft and drones over our cities; we're far beyond gps tracking, traffic cameras, facial recognition requirements (aka drivers license photos), banking records, etc.
I would think that following a particular cell phone's location is more like following a particular automobile's location via tracking its license plates with automated cameras. More intrusive than the days when a human would have had to be at any particular location, but still not a constitutional violation.
A more interesting case would have been if by data mining all cell phone locations, it was determined that Carpenter's phone happened to be correlated with the robbery locations, and that data was why Carpenter was arrested and that data was used as evidence against him.
"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."
So law enforcement would be able to track anyone they wanted as long as they wanted. Scary. How far does "probable cause" go? Is this one unreasonable?
They did get the criminals doing this.
2
I don't think there should be an expectation of privacy when a person consciously sets out to commit a crime. A crime is against someone else, making it a public act. I think there should be an expectation of privacy other than when a person is committing a crime.
2
LOL… so you don't think the constitution applies to any defendant???
1
The Supremes do not like to give broad opinions.
A series of crimes spanning months were being investigated. It would seem that the burden of getting a search warrant for cell phone data for an extended period of time would be minimal. The police could say that there are recorded crimes at specific locations that are similar and that appear to be a pattern. It would be reasonable to inquire whether cell phone data would show that the same phone or phones were in proximity to the robbery locations, especially since cell phones were stolen in large numbers. The "exigent circumstances" exception would only apply for a short time immediately during the actual robberies.
The victim or the law gives the police permission to investigate the crime scene. One could also analogize a cell phone "hit" at a cell tower to be the high tech equivalent of a fingerprint or a shoe print at a crime scene. A perpetrator may not realize that he or she is leaving such evidence at each crime scene. A clever perp would wear gloves and not wear the same shoes and clothing and would also use a different "burner phone" at each robbery and destroy it after the robbery is over.
Finding a phone that repeatedly turns up in proximity to the robbery locations would allow the police to identify a perpetrator of what is clearly a series of criminal acts. If the police did not at least attempt to get a warrant in this case, I think they are going to lose this case narrowly on specific facts.
30
Your idea that cell phone tower recorded hits are like fingerprints at a crime scene would make the world a crime scene; that's not okay.
2
" .. A clever perp .."
The "perp" in this case was stealing cellphones that constantly signal their geographic position.
Most perps are not very clever.
1
Only corporations should be able to make commercial use of every person's movements and purchases and contacts. Cops chasing crooks should not have the same access to the information people put out there in public.
Not unless the cops can make enough contributions to senators and congressmen to be worth their time.
56
LOL! Great tongue in cheek.
This is precisely why I leave my cellphone turned completely off--not just asleep--until I need to use it or check on messages (irregularly). Most of us have become cell phone addicts, glued to our devices lest we miss a call or message from someone. I had what I'd call the good fortune to be living where there was no cell phone coverage when cell phones became omnipresent. As a consequence, I never picked up the habit. With pay phones and landlines gone, I've had to buy a Cricket cell phone, which resides in the glove box. I'm not in the least surprised that the government can track cell phones: it's just another growth of Big Brother.
44
I use airplane mode rather than turning it off completely. It should be as "safe" as a "completely turned off" cell phone.
1
They can track you with it off, and listen in, too. Put it in the freezer if you want to be sure--so I hear, anyway.
2
Your policy is smart, however not everyone has the luxury. I agree, some people are simply obsessed with instant communication while others just haven't thought about the privacy implications. In my industry, where crew members are scattered around large venues, text messaging and cellular phone calls augment our wired and radio communications. My job would be a lot more difficult if I turned off my "smart device".
Like it or not, technology that tracks our movements and records our written communications have become ubiquitous. We must demand laws that limit both government AND corporate use of our data. Meanwhile, maybe industry could show us in practice what they often tout, that markets will get everything under control. There's a huge opportunity for a cellular provider to implement a policy to not keep any such records.
Today cell phones and GPS devices are a real convenience to modern living. In the future there will be electronic devices that allow blind people to navigate independently. These devices will be essential to their lives. We must solve these privacy issues now before they become critical impediments to a normal way of life in our country.
24
The Third-Party Records Doctrine needs to be updated for the 21st century. It’s unfair to treat any info held by Google etc. as though it’s 1976 and I’m looking into phone company records to match an address—totally different!
5
I am a libertarian on social and criminal justice matters (social democrat on economics), and I believe that the court was correct to protect cell phone data, but as to tracking where you are, that is pretty much a "plain sight" issue. If the police had enough personnel, they could follow you. This is the same.
I would hate for "cell phones" -- whose personal information should be protected -- to be conflated with merely GPS and cell-phone location monitoring.
As an aside, there should be a strict liability tort if any of your personal information gathered by the police "leaks" to others while in police control, or from a cache of personal data taken by the police from your phone.
17
This is not about the police tracking where you are. It's about their tracking where you were. So---no, the police could not assign officers to track that physically. And of course the police probably could not track your every movement without your becoming aware of it.
3
If we think about why the fourth amendment was written, then there is little doubt about its ability to still apply in the twenty first century.
Protections from unreasonable search and seizure were intended to protect citizens from the overreach of government into personal information that had not been granted to the government. Cell phone data is personal information that the government should not seize without proper permission, same as any other type of personal information (medical records, journal pages, emails).
The government is very capable of getting a warrant if they need that data. The concern here is one of flagrant misuse. If the government does not need to meet a high standard of proof to search this data, then the opportunity for abuse of this information expands. One needs to only think back a few years to remember that the NSA was gladly collecting telephone records of domestic citizens because they could. The government—and corporations for that matter—will always be able to come up with some use for more data. That's why the fourth amendment exists.
65
When the government created the highly secret FISA Court to dispense warrants like candy at Halloween, all pretense of requiring a 'high standard of proof' was dispensed with.
Only prosecutors and law enforcement agents may appear at FISA 'hearings', and in its entire the history, the FISA Court has never once, NOT ONCE, denied a request for a warrant.
Secret courts issuing warrants wholesale, where the person being served the warrant is prohibited from retaining counsel or even telling ANYONE that the warrant exists? Shameless overreach and power grab reminiscent of old Eastern European police states, and it gets just a little worse every single day.
10
with a land line you spoke in the privacy of your own home which was your kingdom, but out in PUBLIC where anyone can hear what you say, is that really PRIVACY? You are broadcasting your voice to everyone within hearing distance--you gave given up your privacy for the expedient of the cellphnoe.
"One needs to only think back a few years to remember that the NSA was gladly collecting telephone records of domestic citizens because they could."
And likely still do, even after court smackdowns and general public shame.
If the US government must keep allowing this attack on our basic rights, then they should make use of it and allow creepy domestic spying as admissible evidence against banksters and landlords. With that, we might even have a housing free market, instead of a bigoted walled cartel.
1
If anyone has an “expectation of digital privacy” in 2017 they haven’t been paying attention.
Ed Snowden, Marc Klein, William Binney and other ex-employees/contractors of the NSA have made it painfully and repetitively clear: the National Security Agency is recording and storing every telephone call you make, every email and text you send. Under the post-9/11 TIA (Total Information Awareness) program, it has amassed on the order of 20 trillion audio and digital communications between US citiizens, within the US.
A SCOTUS decision forbidding tracking a cellphone users’ whereabouts would make a challenge to this egregious invasion of privacy inevitable. It’s long overdue.
35
Hilarious that Google is all for restrictions on Govt use of data, but want virtually no checks on use by the private sector (like them).
101
The difference is I can choose to not use Google. Tell me how to opt-out of "The Government".
3
You agree to their terms and services when you "sign up" use their product. If you are not willing to bide by those terms, don't use their products/services. You can't do the same with the Federal govt.
2
S.F., there is nothing funny about getting 5,000+ calls a day from police, prosecutors, and trial lawyers, demanding data. That's what GOOG is concerned about.
Think. Now. Please.
1
"Technology companies including Apple, Facebook and Google have filed a brief urging the Supreme Court to continue to bring Fourth Amendment law into the modern era."
If someone had been killed during these armed robberies would these Big Tech companies insist that the robbers be able to literally get away with murder?
This to me isn't the equivalent of placing a wiretap. It's more like serving a search warrant, which would authorize police to search a suspect's home and computer(s).
Until the court clears up, the best strategy is for consumers to avoid robbing, raping, kidnapping or murdering people.
21
If you're going to be a criminal in the 21st century, you should learn how mobile and surveillance technologies work and how to defeat it. Good luck with that.
1
@Jon B:
" . . . avoid robbing, raping, kidnapping or murdering people."
I think you've hit upon something there! What a novel concept: becoming a Society wherein we all retain and place high value on the safety of our families, friends, neighbors and even "strangers" . . . brilliant!
*Sigh* Alas, despite our exalted "Big Brains" -- self-congratulatory plaudits of being the smartest "intelligent life" on this tiny planet, our species' long history belies that notion. Indeed we are unique in our capacity to not only destroy ourselves, but virtually all life on Earth via nuclear war.
A shame, that.
Treating one another as we wish to be treated??? Radical!!!
1
Not only that, but the irony of these companies worrying about the 4th Amendment when they collect our dats on a daily basis! I can’t search for a product without it showing up in the ads on my browser.
2