In a case involving law enforcement’s use of cellphone location data, Apple, Google, Facebook, Microsoft and other major tech companies on Tuesday told the U.S. Supreme Court that transmission to a service provider should not automatically bar protection of digital data from warrantless search and seizure.
“When customers transmit personal data to technology companies in the course of using digital products and services, they reasonably expect that data and the metadata generated alongside it to be securely stored and remain private as to the rest of the world,” wrote Seth Waxman of Wilmer Cutler Pickering Hale and Dorr for the companies. “They should not be forced to relinquish Fourth Amendment protections against government intrusion simply by choosing to use those technologies.”
The companies, however, stopped short of supporting a particular outcome to the case — Carpenter v. United States. Instead, they argued for strong privacy protections, urging the justices to adapt their Fourth Amendment doctrine and its outmoded rules to the evolving digital era. The so-called third-party doctrine and the content/noncontent distinction, they said, should not categorically foreclose Fourth Amendment protection.
Waxman told the court that rather than automatically disqualifying digital data from Fourth Amendment protection “based on rigid analog-era rules,” courts should focus on: “whether an individual has a reasonable expectation of privacy in a given set of digital data. In answering that question, courts should consider among other things the degree to which the data has the potential to reveal intimate details about the user and the extent to which the service or device is used by the average person.”
The high court case, which will be argued this fall, arises from a 2011 incident. The government, without a warrant, obtained from cell service companies months’ worth of phone location records for suspects in a robbery investigation in Detroit. For suspect Timothy Carpenter, the records covered 127 days and revealed 12,898 separate points of location data, an average of over 100 location points per day.
Carpenter was convicted based in part on the cellphone location evidence. On appeal, he argued that the warrantless seizure and search of the location data violated the Fourth Amendment. The U.S. Court of Appeals for the Sixth Circuit held that a warrant was not required.
In their friend-of-the-court brief, the tech companies describe for the justices how personal and integral digital technologies have become and how those technologies exemplify the growing “Internet of Things,” an interconnected network of “smart” devices from wearable technology, such as fitness trackers, to transportation infrastructure. They also explain how users consider many types of collected electronic data to be private, and how the companies themselves attempt to protect that privacy while also complying with law enforcement requests.
Carpenter is represented in the high court by Howard Gurewitz of Detroit’s Gurewitz & Raben, and the American Civil Liberties Union.