The Supreme Court Takes on Cell Phone Privacy

Though it only occasionally will affect business directly, telecommunications executives should track a case about cell phone privacy that was argued this week in the Supreme Court.

The case, which some are calling “the most important digital privacy case in decades,” centers on Timothy Carpenter, who was convicted of participating in robberies of T-Mobile and Radio Shack stores in Ohio and Michigan and given a 116-year sentence. The case was at least partially built on cell phone records detailing his location during the crimes. The records were obtained without a search warrant. The verdict was upheld on appeal.

Decisions in such cases don’t happen in a vacuum. The general attitude of cell phone privacy rules almost certainly will be influenced by the highest court’s decision. For instance, an employer providing phones to employees may be more likely to gain access to data collected by the phone to determine where a worker spends most of his or her time – and whether he or she was where they claim to have been.

The American Civil Liberties Union (ACLU) and others argue that Carpenter’s Fourth Amendment rights were violated. The other side simply claims that people already surrendered their privacy by entering a contract with their carrier and using the phone:

The government claims that information should not be private because cellphone users give up that right to privacy voluntarily. The case may decide the fate of the third-party doctrine, a long-held legal assumption that people forfeit their digital privacy rights when they hand over information to a third party, like a cellphone company, and the government can then access those records.

The Supreme Court will determine how hard it is for law enforcement to gain access to this valuable information. The question of “the third party doctrine” – the idea that if people allow others to hold their personal data they are ceding control — is important in the case. But it may not be dealt with, according to Scientific American. Its story on the case suggests that the court may bypass that argument and simply rule on whether stored data can be used without a warrant. That, the story says, is more relevant in this particular case.

There are already rumblings that the outcome of the case will go beyond the tracking of suspected criminals. Margaret Sullivan, the media columnist for The Washington Post, looked at the potential impact of loosened restrictions on journalists:

Such data may offer invaluable help in prosecuting a criminal. But if it’s available on demand, without a warrant, it could be a nightmare for journalists who are trying to protect their sources. And for their news organizations.

Lowering the bar on access to information could have a profound impact on the mobile enterprise as well as reporters. This seems likely to be particularly true when the device in question is owned by the employer. The Supreme Court is expected to rule in the spring.

Carl Weinschenk covers telecom for IT Business Edge. He writes about wireless technology, disaster recovery/business continuity, cellular services, the Internet of Things, machine-to-machine communications and other emerging technologies and platforms. He also covers net neutrality and related regulatory issues. Weinschenk has written about the phone companies, cable operators and related companies for decades and is senior editor of Broadband Technology Report. He can be reached at cweinsch@optonline.net and via twitter at @DailyMusicBrk.