As cellphones have turned into minicomputers that track your whereabouts and store intimate details of your life, laws and court opinions that once protected individual privacy from government intrusion under the Fourth Amendment have quickly become antiquated.
Fortunately, in recent years the Supreme Court has taken steps to interpret the Constitution's protection against "unreasonable searches and seizures” to fit the modern world.
In 2012, the court restricted the government’s use of GPS equipment to track a vehicle. In 2014, it found police cannot search cellphones without a warrant.
The Supreme Court, in a 'narrow' 5-4 decision, has held that the government and law enforcement need a warrant to gain access to cell phone records pertaining to location data. USA TODAY
And, on Friday, the high court struck another blow against Big Brother, nudging the constitutional right to privacy one more step into the digital age.
In a 5-4 opinion written by Chief Justice John Roberts, the court ruled that law enforcement cannot track people’s whereabouts over long periods through their cellphones, unless police get a warrant.
The case involved Timothy Carpenter, who was convicted for his role in a series of armed robberies that occurred in 2010 and 2011. The government prosecuted him based in part on cellphone records from his provider revealing what cell towers he had pinged over 127 days, placing him near the crime scenes.
Supreme Court rulings in the late 1970s sanctioned government collection of records without warrants when people allowed third parties, such as banks or telephone companies, to have them. By doing so, customers voluntarily give up their right to privacy for those records.
That’s what the Justice Department — backed by 19 states and the nation’s district attorneys — argued: Collection of location data was lawful under those precedents.
The court majority — Roberts joined by the court's four liberal justices — did not see it that way. Four decades ago when this “third-party” doctrine was fashioned, such records were far less revealing. And no one imagined millions of Americans carrying a small device that could track their every movement.
Today, such location data — gathered automatically with no say-so from cellphone owners — provides an "intimate window into a person’s life, revealing not only his particular movements, but through them 'his familial, political, professional, religious, and sexual associations,'" Roberts wrote, citing an earlier opinion.
Three of the four dissenters worried that this "new and uncharted course will inhibit law enforcement."
Whether it will or not, the Fourth Amendment protects against searches without a demonstration of probable cause. And law enforcement in these cases will either need to get warrants, which is not all that difficult, or find less intrusive ways to investigate.
The justices were also careful to narrow the ruling. They did not preclude collection of data through other surveillance technologies, such as security cameras, or even location data when it involves national security or emergencies.
But collecting a road map of a person’s whereabouts over 127 days without a warrant? That goes too far. And police have gone too far quite frequently. In 2016 alone, police sought cellphone location data from AT&T and Verizon 125,000 times. That's not surprising given, as Roberts notes in his opinion, that such data are available on nearly every person in the country carrying one of 400 million cellular devices.
Many more privacy issues involving emails, texts and internet searches remain to be decided. Congress and legislatures would be wise to tackle these important issues and bring the law into the 21st century.
Until they do, Americans with cellphones in their pockets or purses can be thankful that the Supreme Court is ensuring that the Founders' protections against unreasonable government intrusion still apply.
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