Govt surveillance NSA
Govt surveillance NSA

When the US Supreme Court takes up Carpenter vs. the United States Wednesday, the likely landmark case will clarify if law enforcement must obtain court-issued warrants to access location data from wireless providers rather than invoke the lower standard for access imposed by the 30-year-old Stored Communications Act.

In broader terms, the court's decision could codify US Fourth Amendment rights in the digital era.

Citing the third-party doctrine, US government authorities believe they don't need a warrant, arguing that people "have no reasonable expectation of privacy because they [voluntarily] gave the information over” to third-party providers, American Civil Liberties Union (ACLU) Attorney Nathan Freed Wessler, who will argue the case before the court, told reporters last week.

But in the digital era, where mobile phone towers have proliferated, as has the amount of data collected from the likes of smartphones, Fitbits, Google searches, and opt-in websites like WebMD, “the implications are stunning,” said Wessler.

Carpenter v. United States seeks to challenge what lawyers representing defendant Timothy Carpenter said was government overreach. Phone records – which covered 127 days and exposed 12,898 data location points – helped convict Carpenter, who then appealed to the Sixth Circuit Court of Appeals, which upheld the lower court decision and opined that a warrant was not needed under the Fourth Amendment.

The high court has grappled with similar questions of how the digital era is reshaping legal protections. "More fundamentally, it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties,” Supreme Court Associate Justice Sonia Sotomayor concurred in United States v. Jones, a case in which law enforcement put a GPS tracker on a suspect's vehicle without first obtaining a warrant – an act the court deemed a search under the Fourth Amendment. “This approach is ill-suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks."

Noting the rise in the types of electronic surveillance, Carpenter's attorney Harold Gurewitz, called for the Supreme Court to clarify Fourth Amendment protections for all. “The mere fact that we carry cellphones should not mean that our every location is trackable by the government at will,” said Gurewitz.

Indeed, “cell phones have become part of the basic social infrastructure,” vital to public safety, job hunting, scheduling work, accessing information and socialising on the internet, Julia Ticona, postdoctoral scholar at the Data & Society Research Institute, told reporters, voicing concern that low income, more vulnerable people who rely heavily on smartphones for internet access might be more adversely affected by government overreach.

“Searching people's phones without a warrant would go against the Fourth Amendment that protects from unreasonable searches,” said Marty P. Kamden, CMO of NordVPN. “Citizens' right to privacy is being eroded in many different forms, and this could only mean that with the disappearance of privacy, everyone will become more vulnerable to their private information, address and location falling into the wrong hands.”

It is that kind of privacy protection that the ACLU is seeking from the Court's decision.

Noting that the organisation is asking the court to “craft a rule to provide protection in the digital age and the basis to determine other data that should be protected,” Wessler said the ACLU wants clarity that “the third party doctrine isn't an on/off switch. You don't turn off Fourth Amendment rights.”

The rule we're asking for is quite narrow,” he explained.

The ACLU also has taken issue with the length of the time period during which authorities accessed Carpenter's data, saying 127 days was too long. In a “normal investigation,” law enforcement interviews witnesses at the scene of a crime and follow up. “Never before have they had the reach that they have here” via technology, said Wessler. “If government wants to draw a bright line, we say 24 hours” is a sufficient time period to access location data related to a crime. “It's important there should be some limits so we can provide guidance to the public,” he said.

NordVPN's Kamden encouraged wireless carriers “to be more proactive in voicing their support for the privacy of their customers,” saying that it seems “ISPs are actively participating in the disappearance of customers' privacy rights.”

Tech companies Google, Microsoft, Twitter, Apple and Verizon are among those filing an amicus brief with the court, saying “Fourth Amendment doctrine must adapt to the changing realities of the digital era” and advocating for “consideration of reasonable expectations of privacy in the digital age.”