Last week, the U.S. Supreme Court took up a case, U.S. v. Carpenter, that turns upon the “third-party doctrine.” The question before the court is whether cell phone location information obtained from a third-party mobile service provider should require the government to get a “probable cause” warrant instead of a court order requiring a lower burden of proof.
The U.S. government’s theory is that it can demand access to location data and other information generated through use of a mobile device without triggering a warrant requirement. Under the U.S. Constitution, warrants are only necessary when there is a “reasonable expectation of privacy.” The Department of Justice argues that no such expectation exists because device location information must be revealed routinely to mobile phone service providers in order to use a mobile phone.
Cisco joined an amicus or “friend of the court” brief in this case in concert with a range of other leading global technology companies, including Airbnb, Apple, Box, DropBox, Evernote, Facebook, Google, Microsoft, Oath, Snapchat, Twitter, and Verizon. The brief is intended highlight that it is increasingly impossible to move through life without sharing data with third-parties. This is significant—a hard and fast rule that disclosure of data to a third-party would have the effect of stripping away privacy protections for many facts that were traditionally protected against warrantless search and seizure. A more flexible approach is a far better way to go; it would more accurately reflect customer expectations concerning their privacy and sensitive information they share in order to use modern technology like mobile phones.
This is significant—a hard and fast rule that disclosure of data to a third-party would have the effect of stripping away privacy protections for many facts that were traditionally protected against warrantless search and seizure. A more flexible approach is a far better way to go; it would more accurately reflect customer expectations concerning their privacy and sensitive information they share in order to use modern technology like mobile phones.
Now that oral argument is complete, we will have to wait for a decision to see where the court nets out the competing interests.
It is noteworthy to see the parallels drawn by the Justices to recent cases where the Court concluded that changes in technology may require reexamination of 4th Amendment protections. Chief Justice Roberts questioned the voluntariness of providing cell phone location data to a provider by referencing the Riley case, “which emphasized that you really don’t have a choice these days if you want to have a cell phone.” Justice Kagan drew a parallel to the Jones case where 24/7 GPS tracking by law enforcement was determined to be “an altogether new and different thing that did intrude on people’s expectations of who would be watching them when.”
These cases suggest the Court recognizes that evolutions in technology require some reexamination of what government invasions of privacy are reasonable. We hope that the Court will bring this flexible approach to bear in the current case.
The full text of the tech company brief is here:
A recording and the full text of the Supreme Court Oral Argument is here:
https://www.oyez.org/cases/2017/16-402
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