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Carpenter hammers at the wall

| Monday, December 4, 2017

If you’ve never been especially interested in those ‘boilerplate’ terms and conditions of use on your cell phone, a case before the U.S. Supreme Court this session will determine just how much of your privacy remains after you agree to those terms and simply use your phone. Carpenter v. United States focuses on information your wireless devices share on a constant basis with your service providers — companies such as AT&T, Sprint and Verizon. Even without monitoring the content of your communications, these network providers track the towers or “cell sites” devices connect to, the phone numbers they call and answer and the time and length of those calls. The Carpenter case tests law enforcement’s authority to retrieve that non-content data without a warrant.

First, some facts. In April 2011 the FBI arrested persons in Detroit connected to a string of armed robberies at Radio Shack and T-Mobile stores in Ohio and Michigan. One suspect confessed to the crimes and voluntarily turned over his cell phone. The FBI was unable to establish the probable cause it needed to obtain a search warrant for detailed transactional information (as contrasted to the content of the calls) from the wireless carriers, but the magistrate judge reviewing the matter determined the FBI had presented “reasonable” evidence that those records would be useful in its investigation, and issued orders to compel the carriers to give the FBI that data.

The most important difference between a search warrant and the court orders used in Carpenter is that a warrant requires a higher threshold of proof that a search will result in evidence related to a crime. Courts have held that the government’s collection of cell-site records — created and maintained by defendants’ wireless carriers — is not a “search” under the Fourth Amendment, which protects the content of messages. Here, the goal of law enforcement was to obtain the metadata associated with the creation, movement, duration and storage of calls.

Operating with no search warrant, the FBI used the court order to compel MetroPCS to provide months of smartphone location records. According to court records, the FBI used that information to map 12,898 location points and determine the phone’s location during the robberies, creating a diagram similar to one of those maps Billy creates in the Family Circus cartoon strip, identifying locations where calls were made and the length of time callers and recipients of calls remained at a given location. Based on this evidence, the government charged one of the suspects, Timothy Carpenter, with aiding and abetting armed robbery that affected interstate commerce, a federal crime.

Carpenter moved to suppress the cell-site evidence on Fourth Amendment grounds, arguing that the FBI needed a warrant based on probable cause to obtain the records. The district court denied the motion to suppress, and the Sixth Circuit Court of Appeals affirmed that decision. Now the matter is before the U.S. Supreme Court, asking if the warrantless search and seizure of cell phone records, which include the location and movements of cell phone users, violates the Fourth Amendment.

The clear message sent by the lower courts is that you should have little expectation of privacy when you sign up for mobile phone service. If the Supreme Court confirms the lower courts’ rulings, it may well encourage law enforcement to rely on warrantless court orders to access mobile data stored by wireless carriers. If the Supreme Court reverses the lower courts’ decisions, then the common practice of seeking non-content metadata will come into question, and numerous criminal cases based on cell phone data obtained without a search warrant will need to be reviewed. That latter outcome, given the current makeup of the Supreme Court, is unlikely, and we should all prepare to have fewer privacy rights.

What we need to realize is that telecommunications, especially of a content-free nature, are expanding at an explosive rate. This Christmas season brings ever more smart and connected devices—devices that communicate with each other to announce your arrival as the lights or television go on, turn on the stove, or even start your car on a chilly morning. This interconnected wireless technology is laden with metadata, which we freely surrender to tech companies and wireless carriers, obsessed with gathering ever more data to process and exploit. Courts have interpreted this voluntary sharing of information with a company or some other entity as the “third-party doctrine,” under which a person gives up any reasonable expectation that the information will remain private.

This concept developed in the 1970s to allow law enforcement to retrieve calling information from landline phones; now it is being stretched to fit the new world of wireless communications and most consumers have no idea how wide a net it casts. Rather than allow courts to erode privacy rights piecemeal to serve the ends of law enforcement, we need to have a concerted and ongoing review of the laws surrounding privacy in the connected world. Unfortunately, this kind of effort requires serious and focused leadership and a commitment to justice that is lacking in today’s political environment. Still, we must continue to call for action, otherwise the flimsy walls around personal privacy will fall, and if they do we shall have only our ignorance and indifference to blame.

The views expressed in this column are those of the author and not necessarily those of The Observer.

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About Raymond Ramirez

Ray Ramirez is an attorney practicing, yet never perfecting, law in Texas while waiting patiently for a MacArthur Genius Grant. You may contact him at [email protected]

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