Supreme court cellphone case puts free speech – not just privacy – at risk
Supreme court cellphone case puts free speech – not just
privacy – at risk
Carpenter v United States has rightly prompted concerns
over surveillance. But it could also have drastic implications for personal
freedom in the digital age
Jameel Jaffer and Alexander Abdo Monday 27 November 2017
07.00 EST Last modified on Monday 27 November 2017 17.58 EST
On Wednesday, the supreme court will consider whether the
government must obtain a warrant before accessing the rich trove of data that
cellphone providers collect about cellphone users’ movements. Among scholars
and campaigners, there is broad agreement that the case could yield the most
consequential privacy ruling in a generation.
Less appreciated is the significance of the case for rights
protected by the first amendment. The parties’ briefs make little mention of
the first amendment, instead framing the dispute – for understandable reasons –
as one about the right to privacy. Yet the court’s resolution of the case is
likely to have far-reaching implications for the freedoms of speech, press and
association.
The case, Carpenter v United States, arises out of the
government’s prosecution of Timothy Carpenter for a series of armed robberies
carried out in south-eastern Michigan and north-western Ohio several years ago.
In the course of its investigation of the crimes, the government ordered
Carpenter’s cellphone provider to turn over data it had collected relating to
Carpenter’s movements. In response, the provider produced 186 pages listing
every call that Carpenter had made over a 127-day period, as well as
coordinates indicating where Carpenter had been at the beginning and end of each
of those calls.
Importantly, it turned over these records even though the
government had not obtained a warrant based on probable cause. Carpenter asked
the court to suppress the government’s evidence under the fourth amendment,
which protects the right to privacy.
Many cellphone users have only a vague understanding of
the extent to which providers monitor their movements, but these companies now
track us much more closely than even the most committed human spies ever could.
Cellphones function by connecting to antennas – “cell sites” or “cell towers” –
that provide cellular service. Those cell sites, which are owned and operated
by the cellular companies, are programmed to record which phones connect to
them, and when. They also record the direction from which the connecting
phone’s signal is received and, often, the distance of the phone from the cell
site.
So-called “cell site location information” is becoming
ever more precise, because the cellular network is becoming ever more dense.
The analytical tools that can be brought to bear on this information are also
becoming more sophisticated, meaning that investigators can draw reliable
conclusions from smaller and smaller amounts of data. It’s precisely because
the information is so rich, of course, that the government is interested in
accessing it.
Privacy scholars are watching Carpenter’s case closely
because it may require the supreme court to address the scope and continuing
relevance of the “third-party-records doctrine”, a judicially developed rule
that has sometimes been understood to mean that a person surrenders her
constitutional privacy interest in information that she turns over to a third
party. The government contends that Carpenter lacks a constitutionally
protected privacy interest in his location data because his cellphone was
continually sharing that data with his cellphone provider.
Privacy advocates are rightly alarmed by this argument.
Much of the digital technology all of us rely on today requires us to share
information passively with third parties. Visiting a website, sending an email,
buying a book online – all of these things require sharing sensitive data with
internet service providers, merchants, banks and others. If this kind of
commonplace and unavoidable information-sharing is sufficient to extinguish
constitutional privacy rights, the digital-age fourth amendment will soon be a
dead letter.
To understand the Carpenter case’s full significance,
though, it’s necessary to consider the implications the government’s arguments
have for first amendment rights. In a brief filed in support of Carpenter, 19
leading technologists explain how easy it is to use a person’s location data to
learn about her beliefs and associations. (We represent the technologists.)
With very few data points, the technologists observe, an analyst can learn
whether a given person attended a public demonstration, attended a political
meeting, or met with a particular activist or lawyer. With more data, an
analyst can identify social networks and learn not only whether a given person
was at a public demonstration but who else attended the demonstration with her.
Journalists and their sources might be at particular
risk. Imagine parallel demands for the cell site location information of a
journalist who exposed government misconduct and of all the government
employees who had access to the information the journalist exposed. As the
Reporters Committee for Freedom of the Press observes in its own brief filed in
the Carpenter case, cell site location information “can reveal the stories a
journalist is working on before they are published, where a journalist went to
gather information for those stories, and the identity of a journalist’s
sources”.
This is why it is a mistake to think about the Carpenter
case solely through the lens of individual privacy. A defeat for Carpenter
would be a defeat for privacy rights, but it would also mean a dramatic
curtailment of first amendment freedoms.
The Carpenter case is the latest in a series of cases
that have required the supreme court to consider the relevance of analog-era
precedents to digital-age technologies. Although these cases were presented to
the court as fourth amendment cases, the court was attentive to the
implications of government surveillance for first amendment freedoms. When the
court held that the fourth amendment precluded the government from installing a
GPS device on a criminal suspect’s car without first obtaining a warrant, five
justices cited some of the same concerns raised by the technologists we
represent in Carpenter.
Do “people reasonably expect that their 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 [and] sexual
habits?” Justice Sonia Sotomayor asked in her powerful concurrence.
Two years later, when the court ruled that the government
could not search a criminal suspect’s cellphone without first obtaining a warrant,
the court cited similar concerns.
“Awareness that the government may be watching chills
associational and expressive freedoms,” Chief Justice John Roberts wrote. Left
unchecked, he warned, new forms of surveillance could “alter the relationship
between citizen and government in a way that is inimical to democratic
society”.
The court was right in these cases to take account of the
implications of surveillance technology for rights protected by the first
amendment. It should be similarly attentive to these implications in Carpenter.
Without strong protections for individual privacy, the freedoms of speech,
association and the press will wither.
In assessing whether Carpenter had a right to privacy in
his location information, the court should consider what will remain of these
indispensable democratic freedoms if the government is afforded access, without
close judicial supervision, to the information that cellphone providers are
continuously collecting about all of us, and to the other sensitive and even
intimate records that all of us passively and routinely share with third
parties.
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