The Supreme Court expanded privacy rights last month, finding police need a warrant for caches of historical cellphone location data. The ruling continued a sweep of recent decisions that also imposed warrant rules for GPS tracking and post-arrest cellphone searches.
Privacy advocates believe courts will continue expanding Fourth Amendment protections, looking favorably at analysis in Carpenter v. United States that sometimes sharing data with a company isn’t voluntary.
Authorities, loathe to lose an edge, often don’t ask a judge to affirm that they have probable cause to seize digital records. Instead, they lean on the third party doctrine from the 1970s, a legal theory that there’s no expectation of privacy over records voluntarily shared with a third party.
The Fourth Amendment forbids search and seizure of “persons, houses, papers, and effects,” an imprecise guide for new technologies, particularly considering customers share data with companies.
Experts believe if historical location data weren’t voluntarily shared, neither are other types of data, and that other technologies may gain protection from findings that records taken as a whole are expansive enough to require warrants.
Real-time location data
Authorities took pains to obscure evidence in cases involving cell-site simulators that trick phones into disclosing their location. But over the past decade, the devices have become increasingly subject to court battles.
There’s a mix of rulings on whether the devices, commonly known as “Stingrays,” require a warrant, potentially making the issue attractive to justices.
The Cincinnati-based U.S. Court of Appeals for the 6th Circuit found a warrant isn’t needed, but federal district courts in New York and San Francisco, and state-level appeals courts in Maryland and D.C., said authorities do need a warrant.
“A cellphone is more or less an appendage,” said Rachel Levinson-Waldman, a Brennan Center for Justice attorney. “Real-time tracking, it’s already playing out a lot in courts … it’s coming to a head.”
In one caveat, the Carpenter ruling addressed only historical location data spanning more than six days. Real-time data is useful for locating a person’s current whereabouts.
Smart meters
Years ago, police officers looked at monthly electricity readings to guess if someone was growing marijuana. Now, they can look at six-minute snapshots to see if someone’s making dinner.
Smart meters are increasingly pervasive. The Edison Foundation estimated 55 percent of homes had one in 2017.
Historically, the home is “the center of the Fourth Amendment,” said Electronic Frontier Foundation attorney Jamie Williams, making the technology attractive for court review.
The EFF backs a lawsuit pending with the Chicago-based U.S. Court of Appeals for the 7th Circuit from a group opposed to the city of Naperville installing devices reporting energy use every 15 minutes.
“The government is the utility company in that case,” Williams noted. “From that data you can get a clear picture of what’s going on inside the house. … Sometimes you can actually view that data to see what people are doing: Do they cook, do they not cook? How many people are living there?”
Williams said the Carpenter ruling’s emphasis on volunteering bodes well for the case, as residents often don’t have much choice over whether to use electricity.
“Having power is more central to life even than a cellphone,” she said.
Echos and Fitbits
Popular items intended to make life more efficient also are generating legal issues, including Amazon Echos and exercise-tracking Fitbits.
“We’ll definitely start to see more ‘Internet of Things’ cases,” said Ben Wizner, director of the ACLU’s Speech, Privacy, and Technology Project, pointing to an Arkansas case in which a man was charged with murder after Amazon turned over Echo recordings.
Prosecutors dropped the murder charge in November, though after also collecting data from a smart water meter, reportedly indicated an overnight temperature spike that suggested a possible cleanup.
In Connecticut, a man is awaiting trial for allegedly murdering his wife, whose Fitbit undermined the timing of his story involving a home intruder.
Cases involving new technologies will take a while, said Michelle Richardson, deputy director of the Center for Democracy and Technology.
“It’s not an overnight thing,” she said, requiring generally that evidence be collected and used to convict somebody, before that person appeals.
License readers and face scanners
Deployment of surveillance technologies such as license readers and facial recognition technology are seen as other candidates for privacy rulings.
In April, the Virginia Supreme Court allowed an ACLU lawsuit to proceed against police use of license readers, while facial recognition use burgeons overseas.
“Surveillance in public places issues are going to be really interesting under this,” Richardson said. “Facial recognition is the first thing that comes up — talk about something you can’t avoid.”
“There are cameras everywhere,” she said. “Even if the government doesn’t own them, they can access them on every ATM and corner store, and it’s that ubiquitous surveillance system as a whole that the court would probably find compelling.”
Levinson-Waldman said the Carpenter ruling showed that “the court was sensitive to the notion that a large quantity of data taken together can implicate the Fourth Amendment,” setting up a plausible challenge, particularly “if the technology and use cases progress to a point where it’s common.”
