- The Supreme Court is re-examining American rights to digital privacy in a case that has been described as the most important electronic privacy case of the 21st century.
- The court’s ruling, which takes place in June, will determine whether or not law enforcement must acquire warrants when accessing geolocational data emitted by cell phones.
- If the case is lost, it could transform digital privacy and allow for closer government surveillance.
The Supreme Court is re-examining American rights to digital privacy in a hallmark case that’s been called the most important electronic privacy case of the 21st century.
Potentially, the court’s decision could reframe the modern-day understanding of the Fourth Amendment, imperil society’s expectations of digital privacy, and reinterpret notions of American identity and the American right to privacy.
This landmark decision can be traced back to a series of crimes that took place nearly eight years ago, when Timothy Ivory Carpenter orchestrated a string of robberies at cellphone stores, including Radio Shack and T-Mobile, in several midwest cities in the US. After Carpenter’s arrest, prosecutors recreated his physical movements over a six-month period using geolocational data from his cellphone records. Their case rested almost entirely on Carpenter’s cell phone records, which had been obtained through the Stored Communications Act, a federal law that requires investigators provide reasonable proof to obtain tracking data, but has less exacting stipulations than those demanded by a warrant.
David Gray, attorney and author of the book “The Fourth Amendment in an Age of Surveillance,” says that at the core of the Supreme Court case is the understanding of the word “search,” as defined by the Fourth Amendment.
The Fourth Amendment protects Americans against arbitrary arrests and seizure, and in one clause, upholds that citizens are protected against unreasonable searches.
“It all depends on this weird definition of the word ‘search’ and how that applies to technology,” Gray told Business Insider. “The court is using their authority to impose limitations on the use of new technologies by changing the definition of the word ‘search.'”
Jeffrey Rosen, president of the National Constitution Center, an educational nonprofit, agrees with Gray’s assessment. In an interview with Business Insider, Rosen said the court’s definition of the word “search” is determined by a 1970s Supreme Court case that ruled Americans have no privacy protections over most of their data because it’s voluntarily shared with third parties.
“If the court applies that idea to our most intimate data, including huge amounts of information about where we move in public, that can essentially mean that we have no privacy,” said Rosen. “The broad, important, crucial question is how much privacy do we have when the government seizes huge amounts of data stored by third parties.”
The outcome of the case will be determined in June, and according to Rosen, it could be lost either broadly or narrowly. If the court loses broadly and the court upholds that Americans have no expectation of privacy in digital data stored with third parties, Rosen says “it could transform American identity.”
“It would mean that we have no private spaces in which we record our most intimate thoughts, our criticism of the government, our hopes, and our fears,” he said. “It would mean that Americans aren’t as free today than they were at the time of the framing of the Constitution.”