Supreme Court Agrees To Decide Major Privacy Case On Cellphone Data (reuters.com)

An anonymous reader shares a report: The U.S. Supreme Court on Monday agreed to hear a major case on privacy rights in the digital age that will determine whether police officers need warrants to access past cellphone location information kept by wireless carriers. The justices agreed to hear an appeal brought by a man who was arrested in 2011 as part of an investigation into a string of armed robberies at Radio Shack and T-Mobile stores in the Detroit area over the preceding months. Police helped establish that the man, Timothy Carpenter, was near the scene of the crimes by securing cell site location information from his cellphone carrier. At issue is whether failing to obtain a warrant violates a defendant's right to be free from unreasonable searches and seizures under the U.S. Constitution's Fourth Amendment. The information that law enforcement agencies can obtain from wireless carriers shows which local cellphone towers users connect to at the time they make calls. Police can use historical data to determine if a suspect was in the vicinity of a crime scene or real-time data to track a suspect.

Comments

Two issues which people confuse

[gurps_npc]

1) Should police obtain this kind of data. The answer to that is YES, they should.

2) Separate issue is should they get a warrant first. That is also a yes.

Basically what it comes down to is this. Anything a normal citizen could get arrested for should be require a warrant for the police to do.

The reason for this simple, police are human beings and according to most surveys are 96% honest. But normal citizens are 95% honest. That means police are more honest than other people, but only by a little bit. So we need to limit their ability to abuse their authority, just as we limit regular citizens.

In other words, if you can't trust your neighbor to have the right to do something, then neither should you trust the police to do it.

Re:Hasn't this already been decided?

[TWX]

It may depend on if they determine that the records are owned by the subscriber and only being warehoused by the carrier, or if they're owned by the carrier.

This is also arguably new caselaw, in that this wanders into the same arena as when law enforcement plants GPS trackers on suspects' vehicles, which I believe was ruled as requiring a warrant. If we have a fundamental right to privacy from our government then it would follow that the government would need a demonstrable reason to track our movements or to look up any available movement history, and that such a look would need to be sufficiently narrow in-scope. Additionally this isn't a case where police start monitoring a subject and do so for a duration, it's going back through records. So it seems to have aspects of both, but also not be the same as either.

If you look at the actual wording of the beginning of the Fourth Amendment to the Constitution it reads, "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[...]" The language, "persons, houses, papers, and effects," seems pretty broad, like the intention was to be as literally as broad as possible, especially with the inclusion of, "effects," as a catch-all. If the police themselves were making records as they observe a subject then that would be creating their own records, but they're accessing someone else's records instead of their own. Perhaps these records about the person, created without the person's understanding of the technology involved, would count as, "effects," even if they don't necessarily count as, "papers."

Re: Hasn't this already been decided?

[TWX]

That may be another area that will require the courts to make decisions in the future.

In the past it has been perfectly legal for the police to follow a subject that is in-public throughout that person's movements, and the argument was that since anyone could observe the subject in-public, police were free to do so as well. Those kinds of observation required officers to do the observing though, present at the site, themselves.

The use of the GPS tracker is employing a tool as a tracker without a person doing the observing. We already have precedent that while police are allowed to enter the curtilage of private property to knock on the door to speak with the occupants, they are not allowed to employ tools beyond their own natural senses to look for crimes while doing so. It would not be a stretch that some middle-ground in tracking a subject's movements would require officers to be personally observing a subject in-public in order to do so without a warrant, or if they are allowed to employ tools, they must be simple in nature and must be personally operated by the observing individual on-scene. That would probably preclude most forms of autonomous observation without a warrant.

Don't forget with license-plate scanners, the license plate does not belong to the car owner, but belongs to the state. It may be a bit of a hollow argument, but perhaps the state has the right to look at their own property.