WASHINGTON, DC — Denouncing the now widespread tactic employed by police departments, big and small, of spying on Americans via their cell phones with little to no oversight, The Rutherford Institute is asking the United States Supreme Court to require police agencies to secure a warrant before executing a cell phone search and using that data to track a person’s movements over time. In filing an amicus brief in Carpenter v. United States, attorneys for The Rutherford Institute have asked the Supreme Court to reject the government’s claim that cell phone users have no reasonable expectation of privacy in cell phone location information, an idea that is based on the antiquated idea that individuals “voluntarily” provide this information to cellular service providers.
Affiliate attorneys Alicia Hickok and Mark Titicchi of Drinker, Biddle & Reath, LLP, assisted The Rutherford Institute in advancing the arguments in the Carpenter brief.
“Obviously, this new era of technology, one that was completely unimaginable to the men who drafted the Constitution and the Bill of Rights, requires an updated legal code to enshrine the right to privacy,” said constitutional attorney John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People. “New technologies which enable the radical expansion of police surveillance operations require correspondingly robust legal frameworks in order to maintain the scope of freedom and ensure the viability of the Fourth Amendment, even at the dawn of a new age of surveillance technology.”
In 2011, police arrested four people suspected of carrying out a series of armed robberies in the Detroit area. One of the suspects turned informant and provided police with the phone numbers of as many as 15 other men he claimed had assisted with the robberies, acting as getaway drivers and lookouts. As part of its investigation, the FBI—without securing a warrant or showing probable cause—sought court orders requiring two cellular telephone service providers to turn over 127 days’ worth of cell site location information (CSLI) for 16 different phone numbers, including Timothy Carpenter’s cell phone. The orders were sought under a federal law, the Stored Communications Act, which allows the government to obtain records about an individual’s cell phone merely on the basis that the records are “relevant to an investigation.” Based on the cell phone location data, the government tracked Carpenter’s location for over four months, and then used that information to connect him to a series of robberies and charge him with aiding and abetting robbery. Although Carpenter’s attorney argued that the government’s warrantless acquisition of over four months’ of cell phone records to track Carpenter violates the Fourth Amendment, the trial and appellate courts ruled that people do not have a privacy interest in cell phone location information.
In stressing the need for stronger legal privacy protections for emerging technologies, Rutherford Institute attorneys cited the privacy protocols used by social media sites such as Facebook as examples of the nuanced control users retain over the degree to which one’s information will be disseminated and the uses to which it will be put, even when shared via a third-party. Institute attorneys also argue that technology has made it possible—and society has deemed it reasonable—for an individual to exert a more nuanced control over the information he or she discloses: i.e., when, where, by whom, and for how long that information may be accessed.