Reason.com

Free Minds & Free Markets

Your Secrets Are Not Safe With Anyone

A cellphone tracking case gives SCOTUS a chance to reconsider a doctrine that threatens everyone’s privacy.

Timothy Carpenter specialized in stealing cellphones, the same devices that betrayed him. Based on four months of cellphone location data from the companies that provided Carpenter's mobile phone service, the FBI placed him near four stores while they were being robbed.

Carpenter argues that the FBI should have obtained a warrant before looking at those records. His case, which the Supreme Court will hear today, gives the justices a chance to reconsider a misbegotten and increasingly obsolete rule that threatens everyone's privacy in an age when people routinely store large volumes of sensitive personal information outside their homes.

That rule, as summarized by the Court in a 1976 case dealing with bank records, holds that "the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose." The "third-party doctrine" means the Fourth Amendment's ban on unreasonable searches and seizures imposes no restrictions whatsoever on the government's power to examine the most intimate details of your life should you be foolhardy enough to entrust them to someone else.

On its face, this license applies not just to cellphone records, which given modern habits can show where you are and where you've been at almost any given moment, but to remotely stored email, text messages, calendars, browsing and shopping histories, documents, photographs, videos, and audio recordings. Under the third-party doctrine, all of this material receives only as much protection as legislators decide to give it.

No wonder that Justice Sonia Sotomayor was moved to suggest in 2012 that "it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties." As Sotomayor noted, "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."

The Court decided that case, which involved a suspected drug dealer whose movements police monitored for a month via a GPS tracker attached to his car, based on the trespass required to plant the device. But five justices endorsed the view that tracking someone for as long as a month reveals so much personal information that it qualifies as a search under the Fourth Amendment even if it does not involve a physical intrusion.

While that position makes considerable sense as far as expectations of privacy go, defining a search based on the length of surveillance or the quantity of information collected requires distinctions that are bound to be fuzzy, arbitrary, or both. A brief that the Institute for Justice filed in Carpenter's case suggests a more promising approach.

Drawing on the work of law professors William Baude (University of Chicago) and James Stern (William & Mary), the I.J. brief recommends a "positive law model" based on the principle that "when government officials use their power to obtain information in a manner that would be prohibited for private actors, those officials must demonstrate the reasonableness of their actions under the Fourth Amendment." That approach, I.J. notes, "is far more protective of an individual's privately shared information than the current Third Party Doctrine."

Since federal law prohibits cellphone companies from disclosing location records to private parties "without the express prior authorization of the customer," a police demand for that information would clearly implicate the Fourth Amendment, and in all likelihood require a warrant, under the positive law model. The same would be true of any other information that private parties cannot legally obtain without the subject's consent.

The basic idea is that when the government claims a special privilege to collect information about us, it should have to justify its demand as reasonable under the Fourth Amendment. Without that justification, the government is no better than the average voyeur or hacker—and considerably more dangerous.

© Copyright 2017 by Creators Syndicate Inc.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • Scarecrow Repair & Chippering||

    I just read about that "positive law model" the other day, maybe from the same I.J. report. It somewhat astonished me -- it's far too simple and clear for a government to ever accede to it. Imagine limiting a government to only doing what ordinary people can do, and anything else requires a warrant! The gall of some people.

  • Mitsima||

    Really, what's the point of guns, badges, cellphone stingrays, and armored vehicles if you have to follow the law, too?

  • Rockabilly||

    This is all on the progressive marxists and their big government bull shit. Fuck the lot of them!!!

    What was Marx Twain 's social security number?

    Of course, he didn't have one.

    Once we had a right to be left alone, then FDR, the socialist god, took that away.

    It was FDR, the socialist god, who packed with Supreme Court with socialist yes men, who in turn reinterpreted the US Constitution as if it was written by the demented Karl Marx.

    Then FDR was able to pass a law which mandated all Americans to have a government issued ID number for controlling and tracking purposes.

    Socialism, an immoral ideology, hatched from the demented mind of Karl Marx, and responsible for the murder of over 100 million children, women, and men.

  • Johnny B||

    Actually, he didn't pack the court. He just threatened to. But then some of the old conservatives on the court died, and he got the court he wanted through the usual manner.

  • Amir Najam Sethit||

    Understanding article. Your blog gives lesson for everyone. Thank you for sharing this great article.

  • atheistrepublican||

    I think there is less here than meets the eye. The government can't monitor your actual speech, it can only infer an approximate location. We can disable the government's ability by simply turning off our cell phones or putting them on "airplane mode", or buying "burner phones" that we use once and then dispose of. If I were planning a crime, I certainly wouldn't carry a device on me that leaves breadcrumbs showing where I've been.
    This guy is a criminal who, in addition to committing the crimes, acted unwisely in carrying with him a device that could help the police locate him. That was a voluntary action on his part. Yes, it may be harder to commit crimes without your cell phone with you, but that's feature, not a bug, of our system.

  • ohdelilah||

    And if you won't stand up for the rights of criminals, don't expect anyone to stand up for yours. The Fourth Amendment wasn't written to protect the law-abiding. It was written to protect people from a government grown too powerful.

  • ohdelilah||

    The Fourth Amendment specifically guarantees people's privacy in their "persons, houses, papers, and effects," which it seems to me absolutely would include information stored on mobile devices. That is it would if the Fourth Amendment hadn't been rendered meaningless by the so-called "war on drugs." Your property isn't safe even in your home, or in your car, or in your pocket, or even inside your own body. You think people who claim ownership of other people's blood and urine will draw the line at cell phones? This was always a slippery slope, and we're pretty much at the bottom of it right now.

  • Longtobefree||

    This is not about information stored on mobile devices. It is about information stored on servers owned by large corporations. It just so happens that the data is about you.
    Non-web example. The cops ask some bank tellers if they saw you in the bank last week. Are they allowed to reply? What if the tellers are asked if they saw you on the street outside the bank?
    Because the only difference is that the tellers are (presumably) human, and the cell network is not.
    The tellers are not asked about what business you transacted, if any; they are just asked if you were there. No bank account info requested, just were you there.
    Should the cops have access to the various surveillance cameras scattered about the universe? Say the same guy was tracked by asking the shop owners to view the shop owner's own security camera footage that covers the door and the sidewalk outside, and they showed the guilty alleged guy wandering down the street to the place that was robbed. Then what?
    How does a cell phone get privacy rights? The same way guns get to be declared evil? Just because?

  • willard3rd||

    Tracking a persons movements in my opinion is invasive. Though a person be in public and be seen, he is seen by others at one particular time. That is different than tracking his movements- that is called spying- some would call it stalking.
    I have no reasonable expectation to tell anyone my movements- they are private and should be considered the same. Now if I am charged with committing multiple crimes involving my movements in a day, then I can see them looking at the information, but if I am charged with multiple crimes over several days or months involving my movements, a warrant must be issued, since there were many "other" private movements involved during that time.

  • AD-RtR/OS!||

    "Three people can keep a secret.......if two of them are dead."

GET REASON MAGAZINE

Get Reason's print or digital edition before it’s posted online