DAVID GREENE, HOST:
Everywhere we go, we are carrying around little tracking devices. You know this. It's our cell phones. Wireless providers keep records of where we have been, and those records, as you can imagine, are of great interest to law enforcement. But here's a question. Does the government need a warrant to look at cellphone location data? That is a question in front of the Supreme Court this morning, and here's more from NPR legal affairs correspondent Nina Totenberg.
NINA TOTENBERG, BYLINE: The irony of today's case is that it involves massive cellphone thefts, a string of armed robberies at RadioShacks in Michigan and Ohio. The robbers entered the stores, guns drawn, herded patrons to the back, loaded up laundry bags with new smartphones and then later sold their booty for tens of thousands of dollars per haul. In April of 2011, police arrested four men, one of whom confessed that he and a shifting group of 15 others had robbed nine different stores over the previous year. The suspect identified Timothy Carpenter as one of the ringleaders. The thieves all pleaded guilty except for Carpenter and his half brother. At their trial, the icing on the prosecution case was the cellphone location information recorded by Carpenter's wireless provider for each of the calls he placed or received on the dates of the robberies.
Now, remember, this was seven years ago and several smartphone generations. The information used at Carpenter's trial was not exactly precise. It did not record where he was when he texted or where he was when his phone was not in use, but when he made or received calls, the cellphone towers nearby recorded his general location with an accuracy range of about a half mile to two miles. And guess what? Those calls matched up rather nicely with the vicinity of the robberies. While there was eyewitness and video evidence against Carpenter, too, his lawyer Harold Gurwitz said the painfully irrefutable evidence was the cellphone data.
HAROLD GURWITZ: It's the kind of evidence that in the end is the most difficult to argue to a jury that they shouldn't credit because the records are what they are.
TOTENBERG: The question before the Supreme Court is whether the cops should have gotten a search warrant in order to obtain the cell location information. That would have required them to show a judge that they had probable cause to believe those records contained evidence of a crime. What they did instead was obtain a court order under the federal Stored Communications Act, which is easier. In this case, as in others, prosecutors argue that the Supreme Court has long viewed information shared by a consumer as fair game without a warrant. Even before the stored records law was enacted, the high court ruled that you lose your Fourth Amendment right to privacy when you share information with a third party like the phone company. Fourth Amendment scholar Orin Kerr contends that the idea of tracking someone's movements in public is not new. The police, for instance, tail a suspect or check on his alibi. Only when they search the suspect's home or person do they have to get a court-approved warrant. As to the general cell location data at issue in this case, he maintains...
ORIN KERR: These records are basically the network equivalent of public observation that traditionally would not be protected.
TOTENBERG: After all, he notes, the cell site location information is not maintained by government decree. Rather, wireless providers keep the data recorded by cell towers in order to monitor and improve their service. Challenging that argument in the Supreme Court today will be the ACLU's Nathan Freed Wessler.
NATHAN FREED WESSLER: This kind of cellphone technology really changes the game and threatens to upend our expectations of privacy in the digital age.
TOTENBERG: This wasn't a case of the police following a shady person he observes.
WESSLER: They decided after the fact they wanted to try to tie him to a crime. And never before has the government had the power to press rewind on someone's life and chart out a record of where they were going over the course of four months.
TOTENBERG: Over the course of four months and nearly 13,000 calls. The mere fact that the phone data used to convict Carpenter was held by his service provider doesn't change the equation, Wessler maintains. Indeed, he knows that tracking a smartphone gets more and more precise by the day, in some cases allowing law enforcement to pinpoint the building or the office a suspect is in. Professor Kerr counters that the path between the government's law enforcement power and privacy rights is not a one-way street.
KERR: This is a technology that can be used to facilitate crime and also can be used by the government to help solve the crime, and those two, I think, roughly balance each other out.
TOTENBERG: Indeed, he notes, that with private service providers increasingly encrypting data content, it may soon be impossible for law enforcement to obtain the contents of calls and texts even with a search warrant. And with encrypting on the rise, Kerr says, it could well be that the only data the government will have ready access to will be records like those at issue in this case, cellphone site records, or automatic license plate reader records or video from public surveillance cameras. The Supreme Court has in recent years laid down some new rules for the digital age. If the police use a GPS tracking device to monitor a person's life over a long term, they do need a search warrant. And if they seize a smartphone at the time of an arrest, in order to view its contents, they need a warrant for that, too. So today's case is just the latest battle in what promises to be a long technological and legal war. Nina Totenberg, NPR News, Washington.
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