Justices ponder need for warrant for cellphone tower data

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David Fritz

Dec 9, 2017, 12:36:57 AM12/9/17
WASHINGTON — Like almost everyone else in America, thieves tend to carry
their cellphones with them to work.

When they use their phones on the job, police find it easier to do their
jobs. They can get cellphone tower records that help place suspects in the
vicinity of crimes, and they do so thousands of times a year.

Activists across the political spectrum, media organizations and
technology experts are among those arguing that it is altogether too easy
for authorities to learn revealing details of Americans' lives merely by
examining records kept by Verizon, T-Mobile and other cellphone service

On Wednesday, the Supreme Court hears its latest case about privacy in the
digital age. At issue is whether police generally need a warrant to review
the records.

Justices on the left and right have recognized that technology has altered
privacy concerns.

The court will hear arguments in an appeal by federal prison inmate
Timothy Carpenter. He is serving a 116-year sentence after a jury
convicted him of armed robberies in the Detroit area and northwestern

Investigators helped build their case by matching Carpenter's use of his
smartphone to cell towers near Radio Shack and T-Mobile stores that had
been robbed. The question is whether prosecutors should have been required
to convince a judge that they had good reason, or probable cause, to
believe Carpenter was involved in the crime. That's the standard set out
in the Constitution's Fourth Amendment, which also prohibits unreasonable
searches. Prosecutors obtained the records by meeting a lower standard of

The American Civil Liberties Union, representing Carpenter, said in court
papers that the records "make it possible to reconstruct in detail
everywhere an individual has traveled over hours, days, weeks or months."

In Carpenter's case, authorities obtained cellphone records for 127 days
and could determine when he slept at home and where he attended church on
Sunday, said the ACLU's Nathan Freed Wessler.

Courts around the country have wrestled with the issue. The most relevant
Supreme Court case is nearly 40 years old, before the dawn of the digital
age, and the law on which prosecutors relied to obtain the records dates
from 1986, when few people had cellphones.

The judge at Carpenter's trial refused to suppress the records, and a
federal appeals court agreed. The Trump administration said the lower
court decisions should be upheld.

Nineteen states supporting the administration said the records "are an
indispensable building block" in many investigations. There is no evidence
the records have been used improperly and requiring a warrant for them
would result in more crimes going unsolved, the states said.

The administration relied in part on a 1979 Supreme Court decision that
treated phone records differently than the conversation in a phone call,
for which a warrant generally is required.

The court said in Smith v. Maryland that telephone users have no privacy
right to the numbers they dial. Not only must the phone company complete
the call using its equipment, but it also makes a record of calls for
billing and other purposes, the court said.

But that case involved a single home telephone.

More recently, the justices have acknowledged that the wonders of
technology also can affect Americans' privacy, and also struggled with
striking the right balance.

Speaking in New Zealand last summer, Chief Justice John Roberts said he
and his colleagues are not experts in the rapidly changing field. But he
also reaffirmed his view as expressed in a 2014 opinion that generally
requires police to get a warrant to search the cellphones of people they

"I'll say it here: Would you rather have law enforcement rummaging through
your desk drawer at home, or rummaging through your iPhone?" Roberts
asked. "I mean, there's much more private information on the iPhone than
in most desk drawers."

Justices Samuel Alito and Sonia Sotomayor also have written about their
concerns over technology's effect on privacy.

In that same 2014 case, Alito said Congress is better situated than the
courts to address the concerns. Two years earlier, Sotomayor said the
court may need to bring its views in line with the digital age. "I for one
doubt that people would accept without complaint the warrantless
disclosure to the Government of a list of every Web site they had visited
in the last week, or month, or year," she wrote in a 2012 case about
police installation of a tracking device on a car without a warrant.

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