The Supreme Court has handed down what may be the most important privacy case of the digital era, ruling on Friday that the government cannot force cellphone service providers to hand over their users’ locations over significant periods of time without first getting a warrant. The decision, United States v. Carpenter, is the latest in a steady drip of rulings by the Supreme Court over the past two decades that are gradually defining the Fourth Amendment right to privacy in a world of ever-evolving technology.
The case began with the investigation of a series of armed robberies in southeastern Michigan and northwestern Ohio. The police suspected a man named Timothy Carpenter and ordered his cellphone service provider to turn over all data revealing Mr. Carpenter’s movements. Even though the police had no warrant, the service provider complied with the request, giving the police a trove of data showing the suspect’s movements over the course of 127 days. That information included a list of every call he had made during that period as well as his geographical location at the beginning and end of each of those calls.
The question the case presented was deceptively simple: Can the police collect your cellphone location data for days on end without a warrant? A 5-4 majority of the Supreme Court said no. But even in reaching what it characterized as a “narrow” conclusion, the court took a significant step that will shape the constitutional right to privacy in the modern age.
Specifically, the court cut back on the scope and reach of the “third-party doctrine” — a legal presumption, embraced by the Supreme Court in the 1970s and ’80s, that if you share information with a third party, you have forfeited your right to privacy regarding that information. It’s the rationale used to justify the police’s warrantless access to the garbage you place out on the street, to your call records and to your bank statements.
The application of the third-party doctrine has been logically inconsistent and confusing, and it is particularly ill suited to the digital age. When the doctrine was created, people generally kept their private effects — their journals, correspondence and the like — in their sole possession. It was perhaps understandable, in that world, that the Supreme Court often conditioned privacy on the secrecy of the information. It made sense to say that if you want something to remain private, you shouldn’t share it with others.
But it’s easy to see why that concept is untenable in modern times, when virtually everything we do requires sharing sensitive information with third parties. Today’s world is a networked one: Cellphone companies catalog our every movement. Internet service providers log every web page we visit. Credit-card companies, email providers, social-media services, fitness apps — all of these third-party services keep detailed diaries of our lives.
Are all of these records up for grabs by the government without a warrant?
At least for the cellphone location records at issue in the case, the answer is no. Writing for the court, Chief Justice John G. Roberts Jr. observed that the location tracking technology turned against Mr. Carpenter could be used to construct “a detailed chronicle of a person’s physical presence compiled every day, every moment, over several years.” He rejected the government’s effort at “mechanically applying the third-party doctrine” to that technology. Cellphone location records are especially sensitive, Chief Justice Roberts explained, and cellphone customers do not “share” them with their providers in any ordinary sense of that word.
In his dissent, Justice Samuel Alito said the court’s decision will “guarantee a blizzard of litigation” over the application of the Fourth Amendment to other new technologies.
He may be right about that blizzard, but only because of the countless ways that new technology can be used to intrude on individual rights. The chief justice listed just a few of the innovations that are likely to make their way to the Supreme Court in coming years: real-time cellphone location tracking by the police and “tower dumps,” used by the police to download activity from a cell tower during a specific period to identify or track a suspect.
And that list of technologies that could end up before the court is much longer because the government can monitor more than just our movements; it can track every purchase we make, every website we visit, every television show or movie we watch, every contact we email and more. Whether the government may do so without a warrant is an open question following the Carpenter decision.
The chief justice stressed that the court was not expressing “a view on matters not before us.” Still, how the lower courts apply Friday’s ruling to new technologies will be pivotal in defining the future of not only our right to privacy but also our freedom of speech.
Imagine if the government had the power to force cellphone and internet providers to disclose the contact lists of journalists and their suspected sources, the names of protesters at a rally or the phone numbers and email addresses of everyone who contacted the author of a report critical of the government — all without a warrant. The rights of free speech, assembly and association secured by the First Amendment would be hollowed out by authority that expansive.
Those are the real stakes of the Carpenter decision. While the court didn’t directly address these questions, it paved the way for their resolution, free from doctrinal anachronisms and sensitive to the threats to individual rights in the bold but scary world of modern technology.
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