Saturday, June 10, 2017

24.2 - Potential Good News: Supreme Court will review a case of cell phone tracking

Potential Good News: Supreme Court will review a case of cell phone tracking

Next up, we have a case of potential Good News. It's not Good News yet, but if it works out the way some people are thinking it well might, it would indeed be Good News.

On June 5 the Supreme Court announced it will review United States v. Carpenter, a case involving long-term, retrospective tracking of a person's movements using information generated by their cell phone. The Electronic Frontier Foundation, which focuses on digital privacy, called this "very exciting news."

The case involves two defendants, Timothy Carpenter and Timothy Sanders, convicted of a string of armed robberies in 2011.

The issue at hand is that the prosecution won the convictions at least in part by convincing the jury that the two were at the scene of each of the robberies by using the cell site location information (or CSLI) data for their cell phones for some months around the time of the crimes: records that the FBI obtained without a warrant. The pair contended that such a warrantless search was a violation of the Fourth Amendment.

The 6th Circuit Court of Appeals rejected the argument, insisting that the information from the CSLI records was merely "information necessary to convey" a call and did not include the content of the call, so access to CSLI records was not a "search" under the Fourth Amendment - ignoring the fact that those same records can reveal where you were, when you were there, and for how long you were there: precisely the info used to convict both Carpenters.

The Electronic Frontier Foundation said the court's ruling "shows a complete disregard for the sensitive and revealing nature of cell site location information" as well as equating analog technologies addressed in old cases with "the data-rich technologies of today." In other words, the court didn't know what it was talking about and so just fell back on "Sure, cops, whatever you say."

Which is one reason why groups like the EFF wanted SCOTUS to take up the case, especially in light of the fact that the Court has twice recently heard cases involving digital privacy and both times has ruled against the cops and in favor of privacy. There is a reasonable hope that the Supreme Court, which seems more aware of the technological implications involved than the lower courts do, will do so again.

And that would be Good News.

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