On Thursday, the Supreme Court will meet privately to discuss the controversial privacy question of whether the authorities need a court warrant to force mobile phone companies to divulge their customers’ cell site data. This data shows where you were (according to a cell tower) and when you made a call. This information can paint a canvas of one’s whereabouts, yet it’s not constitutionally protected material because it’s viewed as an ordinary business record held by the telcos. Courts have largely interpreted this to mean that the authorities can get the data without probable-cause court warrants.
There are five cases on the high court’s conference list in which cell-site data, obtained without a probable-cause warrant from a judge, was instrumental for the authorities to prosecute for armed robbery, drug running, and illegal possession of weapons. The defendants are asking the court to revisit the so-called third-party doctrine—a legal theory that allows authorities to obtain private information on people if that information is considered a normal business record voluntarily given to and held by a third party. In this case, the data is deemed a business record of the mobile phone companies, which are required to disclose it as part of government investigations.
This third-party doctrine dates to a 1979 Supreme Court case called Smith v. Maryland. That case set the legal framework behind the government’s once-secret phone metadata spying program disclosed by Edward Snowden. To that backdrop, the defendants in the five cases want the justices to answer the question, once and for all, on whether the third-party doctrine should apply to this Digital Age method of warrantless tracking. The high court has remained relatively silent on the issue.
“Mobile phone technology,” an attorney for a convicted armed robber told the high court in a petition, “has outstripped the meaning of Smith.” All of the appeals courts that have ruled on the matter have sided with the government’s contention that the third-party doctrine applies. Hence, no warrants are needed because the data is a business record that the telcos may hand over if the government asserts that reasonable grounds exist to believe the data is relevant to an investigation.
The issue comes to a boil before the Supreme Court as cell-site tracking has become extremely important to crime fighting following the justices’ 2012 ruling that a warrant is needed for the authorities to place GPS trackers on vehicles.
Whether the high court will entertain the issue is anybody’s guess, however. It was asked to do so in one case in 2015 and declined. Only one appeals court has sided against the government. But the 4th US Circuit Court of Appeals, at the government’s urging, subsequently switched its position after rehearing the case.
That said, at least one high court justice, Sonia Sotomayor, has called the third-party doctrine:
Ill-suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks. People disclose the phone numbers that they dial or text to their cellular providers; the URLs that they visit and the e-mail addresses with which they correspond to their Internet service providers; and the books, groceries, and medications they purchase to online retailers.
Although Justice Sotomayor wrote this in a concurring opinion in the 2012 GPS case, she has not taken any action on the issue since then.
One case on cell-site data (PDF) the justices will consider at their Thursday private conference concerns two men, one who got a life term and the other who got 14 years.
Last year, the Cincinnati-based 6th US Circuit Court of Appeals unanimously upheld the location data evidence of the two men who were convicted of aiding and abetting a string of robberies. The data placed the men near the robberies of Radio Shack and T-Mobile stores in and around Detroit. The men believed that a probable-cause warrant under the Fourth Amendment was required for the government to access their location data. The appeals court disagreed, and it accepted the legal standard requiring disclosure if the government asserts the data is “relevant and material to an ongoing criminal investigation.”
What’s more, the three-judge court said that if Congress thought Americans should enjoy such a privacy interest, Congress was free to adopt that conclusion. Federal legislation requiring that cell-site data be constitutionally protected and require a probable-cause warrant was introduced in February and has not advanced to a hearing.