Justices appear to favor more restraints on government access to digital information


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 Justices appear to favor more restraints on government access to digital information

A woman checks her cellphone as she waits in line to enter the U.S. Supreme Court on Wednesday.A majority of Supreme Court justices seemed to agree Wednesday that the abundance of private information available about Americans in the digital age might require new restraints on government's ability to access it.

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In the case before the court, that might mean law enforcement must prove more to a judge about suspected criminal wrongdoing to collect cell-tower records that can provide what Justice Elena Kagan called "24/7" tracking of a person.

But the justices indicated that was only one issue implicated by an explosion of digital information that is transforming Americans' expectation of privacy.

"This is an open box," said Justice Stephen G. Breyer. "We know not where we go."

Justice Sonia Sotomayor was the most insistent on protections. "Most Americans, I think, still want to avoid Big Brother," she said, while acknowledging the public's increasing reliance on the modern technology that makes surveillance easier.

Deputy Solicitor General Michael R. Dreeben said that the government's use of cell-tower records, an important tool for solving crime, did not violate an individual's constitutional protection against unreasonable searches.

The records are kept by an individual's carrier, he noted, and in disclosing them the company is acting as a potential witness to a crime.

Nathan F. Wessler, a lawyer for the American Civil Liberties Union, said the records serve as a "time machine" for law enforcement to reconstruct a person's minute-by-minute movements.

The Supreme Court's previous decisions "could not have imagined the technological landscape today," he said.

Wessler represents Timothy Carpenter, who is serving a 116-year sentence for his role in armed robberies in 2010 and 2011 at RadioShack and T-Mobile stores in and around Detroit. The gang was stealing, of all things, smartphones.

One of the men arrested named Carpenter as the ringleader who typically organized the robberies, supplied the guns and acted as a lookout. Authorities asked cellphone carriers for 127 days of records that would show Carpenter's use of his phone.

Such records indicate where a cellphone establishes connections with a specific cell tower and give a fair representation of the vicinity of the user. In Carpenter's case, the mass of information showed his phone at 12,898 locations, including close to where the robberies occurred when they took place.

Carpenter's attorneys say that the government's actions violated their client's rights under the Fourth Amendment, which protects against unreasonable searches. Authorities should have had to convince a judge that there was probable cause to get the records, they say.

Instead, under the Stored Communications Act, authorities had to meet a lesser standard — that there were "reasonable grounds to believe" that the records sought "are relevant and material to an ongoing criminal investigation."

The government contends that its actions fit squarely with the Supreme Court's prevailing precedents. In a 1979 decision in Smith v. Maryland, the court ruled that requesting records that showed the numbers called from a traditional home phone did not constitute what would be considered a "search" under the Fourth Amendment.

Because the caller's information was voluntarily transmitted to a third party — the telephone company — the caller had no reasonable expectation that the numbers called would remain private. It is the same in Carpenter's case, Solicitor General Noel Francisco told the Supreme Court.

"Cell-phone users voluntarily reveal to their providers information about their proximity to cell towers so the providers can connect their calls," the brief says. "Users cannot reasonably expect that the providers will not reveal that business information to the government."

The companies are properly seen as potential witnesses to a crime and requesting information from them should not require a warrant, the government argues.

"The third-party doctrine does not turn on what information the government acquires and how sensitive that information is, but rather on how the government acquires the information," the brief says. "Seeking information about a suspect from a third-party witness does not amount to a Fourth Amendment search of that suspect, no matter how revealing or incriminating the evidence may be."

If that is right, the companies are reluctant witnesses.

Leading technology companies including Apple, Facebook and Microsoft asked the court to "refine" its Fourth Amendment doctrine to recognize that "in the evolving digital era, where such data is disclosed to or collected by service providers to provide technologies that are increasingly integrated into daily life, people reasonably expect that their data will be stored securely and remain private."

While the technology companies have taken no position on Carpenter's case, several organizations say the court should use it to curtail the government's access to the records.

The "sweeping implication" of the government's argument is troubling, said a brief filed by the Electronic Privacy Information Center and three dozen technology and legal experts. "Sensitive personal data — photos, emails, location information, or otherwise — does not become less private simply because a cell phone user entrusts that information to a communications service provider."

Former Maryland attorney general Stephen H. Sachs, who argued and won Smith v. Maryland in 1979, said the precedent has outlived its value.

"When the Supreme Court decided Smith, in the pre-dawn of the digital age, we didn't know about the Internet, smartphones, cloud computing, Facebook or Twitter," Sachs wrote this week in an opinion piece for The Washington Post. "No one involved in the case could foresee the digital revolution that was to come."

The case is Carpenter v. U.S.

By: The Washington Post

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