(Washington Times) The Trump administration told the Supreme Court Wednesday that cellphone records belong to telecom companies, not to their customers, as they sought to defend the ability of police to track Americans’ whereabouts without having to first get a warrant.
The case is shaping up as one of this term’s blockbusters, as the high court continues to grapple with the limits of privacy and clashes with government snooping powers in a world of modern technology.
Justices in recent years have ruled police cannot go through someone’s phone without a warrant, and cannot place a tracking device on a vehicle without permission.
But the issue of phone data is more complex, with the government arguing the data belongs to the companies, not the consumers, who don’t have a reasonable expectation of privacy.
“It’s a very open question,” said Justice Stephen G. Breyer.
The case involved Timothy Ivory Carpenter, who was convicted for a string of robberies after police tracked his location based on 127 days’ worth of data from cell towers showing his general location. The government obtained the data from the phone company without a warrant.
Carpenter argued that tracking him without a warrant violated his 4th Amendment rights.
A lower appeals court disagreed, and upheld his convictions.
The federal Justice Department argued in court Wednesday that since cellphone companies own the tracking data, there is no 4th Amendment protection for individuals.
Justice Neil M. Gorsuch seemed skeptical.
“Could we strip your property interests of any Constitutional protections?” he asked.
But Justice Samuel A. Alito Jr. wondered how a consumer had rights to data owned by a telephone company. He also said at this point perhaps consumers should be aware of how much of their information is being collected.
“I mean, people know, there were all these commercials, ‘Can you hear me now? — our company has lots of towers everywhere.’ What do they think that’s about?” Justice Alito said.
Michael R. Dreeben, deputy solicitor general, said the cell companies are essentially the same as witnesses being interrogated about what they see in their interactions with their customers.
He said the information being asked about is “routing information,” not the contents of people’s phones or conversations or emails they’re sending over them.
“People who dial phone numbers on calls know that they’re being routed through a cellphone or a landline provider,” he said. “Those records can be made available to the government.”
Privacy advocates say the case gives the justices an opportunity to update the 4th Amendment, making it more current as technology advances.
“The court should seize this opportunity to extend 4th Amendment protections to cellphone location information, which the majority of Americans considers to be sensitive information,” said Matthew Feeney, a policy analyst for the Cato Institute.
National security experts, though, argue the location data pinged off cellphone towers doesn’t reveal content of the communications, so the 4th Amendment isn’t violated.
Matthew Heiman, a former national security lawyer for the Justice Department, said if the court rules against the government, a public stake-out following a suspect could require a warrant “because it provides the same information as cell-location data.”
“That makes no sense and is not supported by the law,” Mr. Heiman said.