Interesting article, cross-posted from ISOC Public Policy list > Begin forwarded message: > > From: "Richard Hill" <[email protected]> > Subject: [Internet Policy] How a Radio Shack Robbery Could Spur a New Era in > Digital Privacy > Date: November 27, 2017 at 3:15:08 AM PST > To: "Internetpolicy@Elists. Isoc. Org" <[email protected]> > > FYI, > > Best, > > Richard > > ================ > > How a Radio Shack Robbery Could Spur a New Era in Digital Privacy > > By ADAM LIPTAK <https://www.nytimes.com/by/adam-liptak> NOV. 27, 2017 > > Photo > > > > A Supreme Court decision expected by June will shape how the privacy > protections of the Fourth Amendment, drafted in the 18th century, apply to a > world in which people’s movements are continuously recorded by devices. > Credit J. Scott Applewhite/Associated Press > > WASHINGTON — The case that could transform privacy law in the digital era > began with the armed robbery of a Radio Shack store in Detroit, a couple of > weeks before Christmas in 2010. In the next three months, eight more stores > in Michigan and Ohio were robbed at gunpoint. > > The robbers took bags filled with smartphones. Their own phones would help > send them to prison. > > On Wednesday, the Supreme Court will consider whether prosecutors violated > the Fourth Amendment > <https://www.law.cornell.edu/constitution/fourth_amendment>, which bars > unreasonable searches, by collecting vast amounts of data from cellphone > companies showing the movements of the man they say organized most of the > robberies. > > Experts in privacy law said the case, Carpenter v. United States, No. 16-402, > was a potential blockbuster. > > “Carpenter could be the most important electronic privacy case of the 21st > century,” said Jeffrey Rosen > <https://constitutioncenter.org/press-room/expert-sources/jeffrey-rosen>, the > president of the National Constitution Center, a nonprofit group devoted to > educating the public about the Constitution. > > In a pair of recent decisions, the Supreme Court expressed discomfort with > allowing unlimited government access to digital data. It limited the ability > of the police to use GPS devices to track suspects’ movements, and it > required a warrant to search cellphones. > > Technology companies including Apple, Facebook and Google have filed a brief > <http://www.scotusblog.com/wp-content/uploads/2017/08/16-402-ac-technology-companies.pdf> > urging the Supreme Court to continue to bring Fourth Amendment law into the > modern era. “No constitutional doctrine should presume,” the brief said, > “that consumers assume the risk of warrantless government surveillance simply > by using technologies that are beneficial and increasingly integrated into > modern life.” > > The court’s decision, expected by June, will apply the Fourth Amendment, > drafted in the 18th century, to a world in which people’s movements are > continuously recorded by devices in their cars, pockets and purses, by toll > plazas and by transit systems. The court’s reasoning may also apply to email > and text messages, internet searches, and bank and credit card records. > > “The case is hugely important in that it defines the constitutional role in a > really wide range of cases,” said Orin Kerr > <http://gould.usc.edu/faculty/?id=73523>, a law professor who will soon join > the faculty at the University of Southern California. > > The case concerns Timothy Ivory Carpenter, who witnesses said had planned the > robberies, supplied guns and served as lookout, typically waiting in a stolen > car across the street. “At his signal, the robbers entered the store, > brandished their guns, herded customers and employees to the back, and > ordered the employees to fill the robbers’ bags with new smartphones,” a > court decision said > <http://www.scotusblog.com/wp-content/uploads/2016/10/16-402-op-bel-6th-cir.pdf>, > summarizing the evidence against him. > > In addition to presenting testimony, prosecutors relied on months of records > obtained from cellphone companies to prove their case. The records showed > that Mr. Carpenter’s phone had been nearby when several of the robberies > happened. He was convicted and sentenced to 116 years in prison. > > Mr. Carpenter’s lawyers said cellphone companies had turned over 127 days of > records that placed his phone at 12,898 locations, based on information from > cellphone towers. Prosecutors could tell whether he had slept at home on > given nights and whether he attended his usual church on Sunday mornings. > > “Never before in the history of policing has the government had the time > machine it has here,” said Nathan Freed Wessler > <https://www.aclu.org/bio/nathan-freed-wessler>, a lawyer with the American > Civil Liberties Union, which represents Mr. Carpenter. Mr. Wessler said > prosecutors should be required to obtain a warrant when they seek more than > 24 hours’ worth of location data. > > Older Supreme Court decisions indicate that no warrant was required. In 1979, > for instance, in Smith v. Maryland > <http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&invol=735&vol=442>, > the Supreme Court ruled that a robbery suspect had no reasonable expectation > that his right to privacy extended to the numbers dialed from his landline > phone. The court reasoned that the suspect had voluntarily turned over that > information to a third party: the phone company. > > Relying on the Smith decision’s “third-party doctrine,” federal appeals > courts have said government investigators seeking data from cellphone > companies showing users’ movements also do not require a warrant. > > A federal law, the Stored Communications Act > <https://www.law.cornell.edu/uscode/text/18/2703>, does require prosecutors > to go to court to obtain tracking data, but the showing they must make under > the law is not probable cause, the standard for a warrant. Instead, they must > demonstrate only that there were “specific and articulable facts showing that > there are reasonable grounds to believe” that the records sought “are > relevant and material to an ongoing criminal investigation.” > > Professor Kerr said Congress was better suited than the courts to strike the > right balance between the government’s need for information and privacy > rights. In Mr. Carpenter’s case, he added, the Fourth Amendment should not > apply because there was no search. > > Mr. Carpenter’s lawyers rely on two recent and unanimous Supreme Court > decisions expressing discomfort with the collection of large amounts of > digital data. In 2014, in Riley v. California > <https://www.nytimes.com/2014/06/26/us/supreme-court-cellphones-search-privacy.html?_r=0>, > the court said the police must generally have a warrant to search the > cellphones of people they arrest. > > “Modern cellphones are not just another technological convenience,” Chief > Justice John G. Roberts Jr. wrote for the court. Even the word cellphone is a > misnomer, he said. “They could just as easily be called cameras, video > players, Rolodexes, calendars, tape recorders, libraries, diaries, albums, > televisions, maps or newspapers,” the chief justice wrote. > > But the Riley case concerned information possessed by the person arrested. > Mr. Carpenter’s case concerns information held by cellphone companies. > > The second case, United States v. Jones > <http://www.nytimes.com/2012/01/24/us/police-use-of-gps-is-ruled-unconstitutional.html>, > in 2012, concerned a GPS device that the police attached to a suspect’s car, > allowing them to track his movements for 28 days. > > All nine justices agreed that this was problematic under the Fourth > Amendment, but they were divided on the rationale for the decision. The > majority said the police were not entitled to place the device on private > property. But five justices in concurring opinions expressed unease with the > government’s ability to vacuum up troves of private information. > > “The use of longer-term GPS monitoring in investigations of most offenses > impinges on expectations of privacy,” Justice Samuel A. Alito Jr. wrote for > four justices. “Society’s expectation has been that law enforcement agents > and others would not — and indeed, in the main, simply could not — secretly > monitor and catalog every single movement of an individual’s car for a very > long period.” > > Cellphone tower information is not nearly as accurate as that generated by > GPS devices, but it is catching up. > > Mr. Rosen, who favors broad privacy protections, said Mr. Carpenter’s case > could transform Fourth Amendment law however the court rules. > > “If the court squarely recognizes what it’s been suggesting in recent cases, > namely that we do have an expectation of privacy in our digital data and > public movements and that the Fourth Amendment prohibits the government from > tracking us door to door for weeks in public, that would be an occasion for > dancing in the streets,” he said. “If the court holds that we don’t have an > expectation of privacy in public except when there is some sort of physical > trespass involved, that could be a huge setback for privacy.” > > nyt > > _______________________________________________ > To manage your ISOC subscriptions or unsubscribe, > please log into the ISOC Member Portal: > https://portal.isoc.org/ <https://portal.isoc.org/> > Then choose Interests & Subscriptions from the My Account menu.
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