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STANDARDS

Common Core: RH.6-8.1, RH.6-8.3, RH.6-8.7, RI.6-8.1, RI.6-8.7, RI.6-8.8, W.6-8.1, WHST.6-8.4

C3 (D2/6-8): Civ.2, Civ.3, Civ.4, Civ.5, Civ.8, Civ.12, Civ.14

NCSS: Power, authority, and governance; Civic ideals and practices

Can Your Phone Testify Against You?

Our phones collect data about us that police can use to solve crimes. When does that violate our constitutional right to privacy?

October 9, 2017

By Brooke Ross

Timothy Carpenter’s own cell phone gave law enforcement officials all the evidence they needed to send him to prison for 116 years.

According to federal authorities, Carpenter carried out a string of armed robberies of electronics stores in Michigan and Ohio between 2010 and 2011. How do they know? They accessed his cell phone’s location records. Those records show where you are whenever your phone is with you.

Timothy Carpenter’s own cell phone gave law enforcement officials all the evidence they needed to send him to prison for 116 years.

Federal authorities say that Carpenter carried out several armed robberies of electronics stores in Michigan and Ohio between 2010 and 2011. How do they know? They looked at his cell phone’s location records. Those records show where you are whenever your phone is with you.

The police obtained the location records from Carpenter’s cellular service provider. But his lawyers objected. They said getting the records without Carpenter’s permission violated his right to privacy. The right to privacy is based on the Fourth Amendment. (See "The Fourth Amendment" sidebar, below.)

Carpenter’s lawyers argue that the police should have had a warrant, a court document giving them the right to perform a search.

But lawyers for the federal government say Americans give up their privacy rights when they share personal data with outside companies, such as cellular service providers like Verizon and AT&T.

The police got the location records from Carpenter’s cell phone company. But his lawyers protested. They said getting the records without Carpenter’s permission abused his right to privacy. The right to privacy is based on the Fourth Amendment. (See “The Fourth Amendment” sidebar, below.)

Carpenter’s lawyers argued that the police should have had a warrant. That is a court document that gives police the right to perform a search.

But lawyers for the federal government say Americans give up their privacy rights when they share personal data with outside companies, such as Verizon and AT&T, which provide cell phone services.

“This is a case that affects everyone who has a cell phone.”

Now the case—Carpenter v. United States—has made it to the U.S. Supreme Court. As the nation’s highest court reconvenes this month, it will decide whether authorities need a warrant to obtain someone’s cell phone location records.

How the Court rules could have huge implications for our privacy rights in the digital age. We increasingly rely on high-tech gadgets that collect and store information about us—everything from smartphones and fitness trackers to personal digital assistants like Amazon’s Alexa. But should this data be private? And to what extent can police use it against us?

“This is a case that affects everyone who has a cell phone,” says Andrew Crocker of the Electronic Frontier Foundation. “Where you go with your devices, whether that’s to a friend’s house, to a doctor for a specific condition, or to a place of worship, can reveal a lot of private information about your life.

The case of Carpenter v. United States has now made it to the Supreme Court. This year’s term of the nation’s highest court will begin this month. The court will decide if authorities need a warrant to get someone’s cell phone location records.

How the Court rules could have a huge impact on our privacy rights in the digital age. More and more, we depend on high-tech devices that collect and store information about us. We use everything from smartphones and fitness trackers to personal digital assistants like Amazon’s Alexa. But should such data be private? And how far can police go to use it against us?

Privacy vs. Tech

Figuring out how to apply Fourth Amendment privacy rights in the 21st century is not so simple—especially when you consider high-tech devices the Founders could never have imagined. It’s a challenge often left to the nine justices of the Supreme Court. (See “Meet the Supremes” sidebar, below.)

In 2012, the Supreme Court ruled that police need warrants to attach GPS devices to suspects’ cars. And in a 2014 decision, the justices ruled that police officers must have warrants to search people’s cell phones.

Figuring out how to apply Fourth Amendment rights in the 21st century is not so simple. When the Founders wrote the Constitution, they could never have imagined the high tech devices we use today. That is a challenge that has been given to the nine justices of the Supreme Court. (See “Meet the Supremes.” sidebar, below.)

In 2012, the Supreme Court ruled that police need a warrant to attach GPS devices to criminal suspects’ cars. And in a 2014 decision, the justices ruled that police officers must have a warrant to search someone’s cell phone.

A Digital Data Debate

However, when it comes to the data that our devices collect about us—including our location history on smartphones and what Alexa or Apple’s Siri hear us say—police can obtain the records without a warrant in most cases.

Why? It dates back to a 1979 Supreme Court case in which the justices ruled that people give up their privacy protections when they voluntarily share their information with outside companies. At the time, this meant that if you were to dial a phone number, for example, that information—who you called—would belong to the phone company. It could share that information with the police or anyone else.

As technology has advanced, this has come to mean that if you do a search on Google or post a photo to Snapchat, that information belongs to your internet service provider.

But when it comes to the data that our devices collect about us, police can get the records without a warrant in most cases. This includes our location history on smartphones. It also includes what Alexa or Apple’s Siri hears us say.

Why? It dates back to a 1979 Supreme Court case decision. The justices ruled that people give up their privacy protections when they choose to share personal information with other companies. For example, if you dialed a phone number, the information about who you called would belong to the phone company. The company could share that information with the police or anyone else who asked for it.

Technology has advanced since then. Now, if you do a search on Google or post a photo to Snapchat, that information belongs to your internet service provider.

Do police need a warrant to access the info on our devices?

Law enforcement officials point to the 1979 case as the reason for not needing a warrant to access location records. They say the data is critical for quickly arresting criminal suspects and clearing the innocent.

Still, privacy advocates are deeply concerned about how much unprotected data our devices collect about us today. After all, they say, a lot has changed since the 1979 ruling. Back then, no one had social media accounts or smartphones. That’s why many people say it’s time for the Court to re-examine whether the Fourth Amendment protects those kinds of records.

Law enforcement officials point to the 1979 case as the reason for not needing a warrant to examine location records. They say the data is critical for quickly arresting criminal suspects. It is also critical for clearing the innocent.

But the defenders of privacy rights are deeply concerned. They worry about how much unprotected data our devices collect about us today. After all, they say, a lot has changed since the 1979 ruling. Back then, no one had email, social media accounts, or smartphones. That is why many people say it is time for the Court to review whether the Fourth Amendment protects these kinds of records.

Protecting Privacy

The justices may use the Carpenter case as an opportunity to clarify the Fourth Amendment’s meaning in today’s digital age.

“The fact that they agreed to hear the case does point to them doing something interesting,” Crocker says. “The Court has demonstrated a willingness to rethink [privacy protections] as they apply to digital devices and digital data.”

But regardless of how the Court rules, privacy experts say it’s up to each one of us to be mindful of how we use our tech gadgets, because our devices are always tracking us.

“Today,” explains Joel Reidenberg, a professor at Fordham University in New York, “it’s more or less naive to expect privacy when communicating on any of these devices.”

The justices may use the Carpenter case as a chance to clearly define the Fourth Amendment’s meaning in today’s digital age.

“The fact that they agreed to hear the case does point to them doing something interesting,” Crocker says. “The Court has shown a willingness to rethink [privacy protections] as they apply to digital devices and digital data.”

But no matter how the Court rules, privacy experts say it is up to each one of us to be careful about how we use technology. We must remember our devices are always tracking us.

“Today,” explains Joel Reidenberg, a professor at Fordham University in New York, “it’s more or less naive to expect privacy when communicating on any of these devices.”

CORE QUESTION: How do you think the Supreme Court should rule in this case? Cite evidence from the text.

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The Fourth Amendment

The Fourth Amendment is one of the first 10 amendments to the U.S. Constitution, which are known as the Bill of Rights. (See “5-Minute Guide to the Bill of Rights”) The Fourth Amendment protects people against “unreasonable searches and seizures.”

When the Founders wrote the Fourth Amendment in the late 1700s, they were thinking of British soldiers, who, before the Revolutionary War (1775-1783), could enter colonists’ homes to search and seize their belongings without their permission.

Today, if the police ask to physically search something—whether it’s your house or your car—you have the right to say no. If you agree to a search, you’re effectively giving up your Fourth Amendment rights. Any evidence found can be used against you in court.

If you refuse, police need a warrant to do a search. To get a warrant, police must convince a judge that there’s “probable cause”—a reason to suspect a law has been broken.