Jim Dey: What can your cellphone tell others about you?

Jim Dey: What can your cellphone tell others about you?

There are few things Americans more zealously protect than their personal privacy, except, of course, for those millions of occasions each day when they broadcast all kinds of personal information to the entire world.

Social media, like Facebook and other similar internet outlets, demonstrate that many people don't care about their privacy until they do.

But the high-tech invasion of the details of people's lives hardly stops there.

Consider omnipresent cellphones. They tell Big Brother, if he cares to look, where their users are all the time, and Big Brother — aka the government — is not short on curiosity.

That's why the U.S. Supreme Court was the site of legal arguments Wednesday on the lengths to which the government can go to acquire and examine an individual's cellphone records.

The question before the court is whether the government must acquire a search warrant, based on probable cause to believe the target of the warrant has committed a crime, or whether a lower standard now in place — reasonable grounds to believe — is sufficient.

The case is yet another example of how high-tech advances are changing the legal landscape involving the U.S. Constitution's Fourth Amendment protections against illegal searches and seizures.

As is also routinely the case, the individual challenging the government is a really bad guy. But it's outliers like Timothy Carpenter, now serving a prison sentence of more than 100 years, who establish the outer limits of the constitutional rights other Americans enjoy.

Carpenter was convicted of being the mastermind behind a series of 2010 and 2011 armed robberies of cellphone stores in Ohio and Michigan. Authorities used his cellphone records as an important part of the case against him; the records showed he was in the area of the businesses that were robbed when they were robbed.

Carpenter challenged the use of his cellphone records against him, contending the FBI engaged in an illegal search when it obtained the records without a search warrant.

The trial judge denied his motion to throw out the evidence, and a federal appeals court upheld the conviction.

But the U.S. Supreme Court agreed to review the case, setting the stage for the high court to establish a new, higher standard for the government to meet to acquire cellphone records.

Most people probably don't think much about their cellphone use, what it shows and who might be allowed access to it. If they think they have any privacy in business relationships like this, they don't.

There is a legal principle called the "third-party doctrine" that applies. According to Scotusblog, it means "the Fourth Amendment does not protect records or information that someone voluntarily shares" with individuals or businesses.

In Carpenter's case, FBI agents, relying on the "reasonable belief" standard outlined in the 1986 Stored Communications Act, obtained an order from a federal magistrate directing the phone company to turn over Carpenter's cellphone records.

That statute has been upheld on several occasions. In one case, authorities sought the bank records of a man charged with running an illegal whiskey-distilling operation. In another, they asked a telephone company to "record all the numbers that a robbery suspect called from his home."

Under current law, Carpenter appears to be a sure loser. But arguing that high-tech advances have changed everything, Carpenter's lawyers contend the digital age will blow up privacy expectations unless the government's authority is further limited.

That's because cellphones rely on technology that permanently tracks the persons holding them.

Justice Sonya Sotomayor appears certain to support Carpenter's position because she has previously complained that people's "movements will be recorded and aggregated in a manner that enables the government to ascertain, more or less at will, their political and religious beliefs."

Chief Justice John Roberts has raised similar concerns that "awareness that the government may be watching chills associational and expressive freedoms" that can "alter the relationship between a citizen and government in a way that is inimical to democratic society."

But there's another side to the argument as well.

The government contends that what Carpenter calls an illegal search isn't a search of Carpenter at all because the records belong to the phone company, not him. Further, the records show only Carpenter's location, leading to a mere inference that Carpenter was near cell towers located near the robbed stores.

"An inference is not a search," government lawyers stated.

High-tech search cases are increasingly finding their way to the high court. In the recent past, the court has ruled that police must obtain search warrants to examine individual cellphones or attach a GPS to follow specific movements of a car driven by a criminal suspect.

Offering informed speculation, the Washington Post reported that "a majority of Supreme Court justices seemed to agree" that Carpenter's case presented good reasons for imposing new restraints on authorities. But drawing conclusions based on the justices' questions or comments during oral arguments is a risky business.

Perhaps Justice Stephen Breyer put it best when he said of the complicated facts and legal questions, "This is an open box. We know not where to go."

Jim Dey, a member of The News-Gazette staff, can be reached by email at jdey@news-gazette.com or by phone at 217-351-5369.

Comments

News-Gazette.com embraces discussion of both community and world issues. We welcome you to contribute your ideas, opinions and comments, but we ask that you avoid personal attacks, vulgarity and hate speech. We reserve the right to remove any comment at our discretion, and we will block repeat offenders' accounts. To post comments, you must first be a registered user, and your username will appear with any comment you post. Happy posting.

Login or register to post comments