Detroiter’s case sparks Supreme Court privacy battle

Robert Snell
The Detroit News

Detroit — A court battle hailed as the most important privacy rights case in the digital age started with a Detroit robber serving 116 years in prison, caught and convicted thanks to little-known cellphone records.

The case of Timothy Ivory Carpenter reaches the U.S. Supreme Court on Wednesday and could have far-reaching consequences for privacy rights and crimp the government’s ability to easily track the location of cellphones and collect data, including internet browsing histories, photos, voice commands sent to smart devices and more, legal and privacy experts said.

The case also sheds light on stored digital information that tracks a cellphone user’s movements and location even when the phone is not being used.

Carpenter’s lawyer and privacy advocates want to limit the government’s ability to obtain cellphone records revealing a person’s location and movements over a long period of time without a search warrant. Federal prosecutors say the information does not violate Fourth Amendment protections and users do not have a reasonable expectation of privacy.

“The case is about better defining the privacy protections that people have and the records that are created when internet devices are used,” Carpenter’s lawyer Harold Gurewitz said.

Carpenter, 33, was convicted and sentenced to more than 116 years in federal prison in 2014 for his role in a string of armed robberies after investigators obtained tracking information from his cellphone, which FBI agents retroactively used to place him near the scene of the crimes. His lawyers argue investigators violated Fourth Amendment protections against unreasonable searches because the government searched his phone records without a warrant.

The case could decide whether the government must obtain a search warrant to access a person’s cellphone location history.

In December 2010, Carpenter was a two-time felon with convictions for attempted receiving and concealing stolen property, attempted tampering with a motor vehicle and delivering cocaine.

That month, he graduated to more serious crimes.

He conspired with others to rob six cellular telephone stores in Detroit, Highland Park, Eastpointe and Warren, Ohio, during a two-year crime spree.

The robberies targeted cellphones sold at RadioShack and T-Mobile stores. The thieves stole $10,000 to $30,000 worth of new phones during robberies masterminded, initially, by Michael Green, 34, who sold the stolen phones to an Oak Park man, according to court records.

On Dec. 13, 2010, Carpenter and others robbed a RadioShack on E. Jefferson in Detroit. Five days later, they robbed a T-Mobile on Gratiot and, three months later, a RadioShack in Warren, Ohio.

By April 2011, Green was gone. His arrest left Carpenter in charge and he orchestrated the robbery of a RadioShack on Woodward in Highland Park.

An old-fashioned game of telephone led investigators to Carpenter.

After Green was jailed, he started talking to Detroit police and FBI agents about others involved in the robberies. In all, 15 people were charged, including Carpenter, while Green struck a plea deal, according to court records.

Armed with Carpenter’s cellphone number, federal prosecutors applied for court orders to access 152 days of location data for his phone.

The applications did not seek search warrants based on probable cause. Instead, prosecutors sought court orders under a 1986 law, the Stored Communications Act. The lower threshold requires reasonable grounds that the records are relevant and material to an ongoing criminal investigation.

Magistrate judges granted requests for Carpenter’s phone records. The records showed where Carpenter’s phone connected to cell towers during a more than four-month period and the location of his phone while it was roaming on Sprint’s cellular tower network on the day of the RadioShack robbery in Ohio in March 2011.

His phone was tracked through cell site location information, data that is created when phones connect with nearby cell towers. Service providers store that data, including location information for the start and end of phone calls, the transmission of text messages and routine internet connections as phones check for new emails, social media messages, weather updates and more.

The data let agents reconstruct Carpenter’s movements during a more than four-month time span.

Gurewitz tried to suppress the records but lost. U.S. District Judge Sean Cox pointed to case law showing that people do not have a reasonable expectation of privacy in cell-site location data.

Carpenter was convicted following a jury trial and the conviction withstood an appeal. His lawyer wants the Supreme Court to reverse the conviction.

The American Civil Liberties Union will argue Wednesday on Carpenter’s behalf, and has labeled the case the most important privacy rights case accepted by the court in years.

ACLU attorney Nathan Freed Wessler will argue that the Fourth Amendment requires federal agents to get a probable cause warrant before acquiring prolonged data about an individual’s phone location.

The case is significant because it will test the government’s argument that people have no reasonable expectation of privacy because the location data is shared with service providers.

“That’s really stunning,” he said. “In the 21st century, you really cannot go about your daily life without creating these records. We hope the Supreme Court finds that these records are protected by the (search) warrant requirement.”

The location data is not as precise as Carpenter’s lawyer claims and is 12,500 times less accurate than GPS, according to the government. The data did not let FBI agents reconstruct his travels in detail, the government argued.

“Cell-site records may be consistent with the government’s theory that a defendant was there, but they do not on their own suffice to place him at the crime scene,” prosecutors wrote in a brief.

That’s why prosecutors, during Carpenter’s trial, supplemented the data with eyewitness accounts from members of the robbery gang and video surveillance.

The case could have broad implications for minorities and the elderly, who overwhelmingly rely on cellphones instead of more expensive personal computers, said sociologist Julia Ticona of the nonprofit Data & Society Research Institute in New York City.

The principles of the Fourth Amendment must adapt to the digital era, according to a brief filed in the case and signed by several leading technology companies, including Google, Facebook, Apple, Verizon and Twitter.

“Rigid analog-era rules should yield to consideration of reasonable expectations of privacy in the digital age,” the brief read.

(313) 222-2486

Twitter: @robertsnellnews