This is an opinion piece by Professor Sandeep Gopalan, Pro Vice-Chancellor for Academic Innovation and Professor of Law, Deakin University. The author's view and opinion may not imply or reflect Deakin Law School's view.
The United States Supreme Court provided a significant boost for privacy last Friday issuing a decision requiring the government to obtain a warrant before obtaining mobile phone location data. Such data is typically used by law enforcement to identify a suspect’s location – to pinpoint his physical presence near the scene of a crime.
The case arose after four men were arrested in connection with a series of armed robberies in the Detroit area. One of the suspects disclosed information about additional accomplices and provided details about their mobile phone numbers. The FBI analysed the call records and identified another suspect – Timothy Carpenter – as the alleged mastermind of the robberies. They then sought an order under the Stored Communications Act to access his call records from Metro PCS and Sprint. After obtaining the order, the FBI was able to get about 12800 location records showing his movements. Based on these records, Carpenter had been present near the locations where the robberies took place. He was convicted and sentenced to serve over 100 years in prison.
Carpenter sought to suppress the mobile phone location data arguing that his Fourth Amendment rights were violated. The US Constitution’s Fourth Amendment protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Carpenter’s argument was unsuccessful in the lower courts because he had voluntarily provided the information to the mobile phone carriers and the data was owned by them as business records.
The Supreme Court reversed. In a highly important decision, the Court moved away from the property rights view of the Fourth Amendment and emphasised its privacy-protecting features. Chief Justice John Roberts wrote the majority opinion and was clearly concerned about the “unique nature of mobile phone location records.” The court said “an individual maintains a legitimate expectation of privacy in the record of his physical movements as captured through CSLI.” The court worried about what the police might be able to learn from a person’s movements: “the time-stamped data provides an intimate window into a person’s life, revealing … through them his “familial, political, professional, religious, and sexual associations.” Moreover, “location records ‘hold for many Americans the ‘privacies of life.’”
Indeed, the decision recognises how essential to a person the modern mobile phone has become: “almost a “feature of human anatomy.” Modern phones record “exactly the movements of its owner[s]… [who] compulsively carry cell phones with them all the time. [It] faithfully follows its owner … into private residences, doctor’s offices, political headquarters, and other potentially revealing locales.”
The court concluded that when location tracking is used “it achieves near perfect surveillance, as if it had attached an ankle monitor to the phone’s user,” and that this sort of constant surveillance violates the Fourth Amendment.
The dissenting judges had a more limited understanding of the Fourth Amendment. For them, it was based on eliminating unreasonable searches of the owner’s property – home and personal effects – dating back to colonial times. As Justice Thomas pointed out, the mobile phone tower data was not Carpenter’s data – it was owned by the mobile phone company. Therefore, it is not protected and the government can get it from the mobile phone company.
Similarly, Justice Kennedy wrote that financial records were not protected by the court when they could be more revealing than mobile phone location data. He felt that the new privacy right created would put the law on an “unstable foundation.”
To be sure, while there is much to like about the majority opinion, it remains to be clarified. And the court seems to acknowledge that – it specifically wrote this is a “narrow” decision and there are exceptions for national security etc. Emergency situations are also excepted – no warrant where there is a “need to pursue a fleeing suspect,” to protect people from “imminent harm,” or preserve evidence.” It is also not clear if a warrant is required for obtaining less than a week’s location data.
Finally, it is easy for the police to get a warrant – US magistrates are highly deferential to law enforcement and the bar is low.
Setting aside these quibbles, the real import of the judgment is its signal of what’s to come. The court is showing a growing concern about the extreme ease with which the state can gain access to intimate data about a person. In the past, physical limitations protected against intrusions into a person’s liberty – it was not easy to break down doors and an Englishman’s home was really his castle.
That’s not the case today. The state doesn’t even have to use its own devices or particularly sophisticated spying equipment. Without any doors being broken or the person even being aware, the state could learn what’s happening in one’s bedroom via the ubiquitous mobile phone. And it can do this not just at an individual level but en masse at virtually no expense.
Moreover, people don’t have a choice. Mobile phones are not optional – they are essential for communication, finances, work, and safety. As the court noted, people don’t have a choice but to divulge information about their movements – these devices collect data whether we like it or not. Even if we disable all apps, the phone still transmits location information when it accesses the network.
In such a milieu, the court worries that our privacy is compromised. What’s worse, the violation may not be just by the state – mobile phone companies sell our location data to third parties. It is highly valuable to marketers – revealing preferences about shopping, health conditions, networks etc that could be used to target us for selling. Needless to say, this trove of data could also fall into the wrong hands and breach privacy.
Although the court doesn’t say anything about these practices, the commercial violation of our privacy by mobile phone carriers and other companies needs to be urgently corrected. For a start, our location data cannot be commercial property. We consent to its collection for a specific function – to enable the call and transfer mobile data. Therefore, the companies must be required to treat it with a fiduciary obligation and not as their property.
Finally, the court states that privacy has to be protected due to a “social expectation.” But what if there is no such expectation and we are in a post-privacy era? This conundrum needs to be wrestled with. It is not the function of the court – the democratic process must decide where the line should be drawn – how much of an invasion of privacy is acceptable.
Stronger statutory protections must be created to protect the basic privacies that define our humanity. Otherwise, we will end up in a world where Shakespeare’s immortal words “What man art thou that, thus bescreened in night, So stumblest on my counsel?” will cease to have meaning. Our counsel will be laid bare, bescreened or not, both to the state and profiteer.
The European approach to privacy may be the way forward to ensure we become empowered humans rather than mere instruments.