High court could limit police in digital privacy case

Keith Laing
Detroit News Washington Bureau

Washington — U.S. Supreme Court justices on Wednesday raised questions about the legality of police using cellphone data to pin down the location of suspects as they took up a case that focused on a string of robberies in Michigan and Ohio.

But Chief Justice John Roberts and the court’s four liberal justices indicated they could extend the Constitution’s protection against unreasonable searches to police collection of cellphone tower information that has become an important tool in the investigation of crimes.

In the case before the court, investigators acquired 127 days of cellphone tower information without a search warrant that allowed them to place Timothy Ivory Carpenter in the vicinity of a series of robberies of Radio Shack and T-Mobile stores in southeastern Michigan, including Detroit, and Ohio. Carpenter is serving a 116-year prison term for his role in the robberies.

“The whole question is whether the information is accessible to the government” without a warrant, Roberts said.

Investigators were able to get the cell tower records with a court order that requires a lower standard than the probable cause, or strong evidence that a person has committed a crime, that police must show to get a warrant.

Attorneys for Carpenter, 33, argued the collection of such data violates protections against illegal searches and seizures that are enshrined in the Fourth Amendment of the U.S. Constitution.

Lawyers representing the government countered that the Supreme Court has ruled in previous instances that data obtained by a third party, such as a cellphone, can be considered admissible in legal proceedings.

Justices asked pointed questions about the legality of using cellphone data to track down the locations of criminal suspects, pointing out that cellphones are ubiquitous in modern society.

“I don't, but I know that most young people have the phones in the bed with them,” Justice Sonia Sotomayor said. “I know people who take phones into public restrooms. They take them with them everywhere. It's an appendage now for some people. If it's not OK to put a beeper into someone's bedroom, why is it OK to use the signals that phone is using from that person's bedroom, made accessible to law enforcement without probable cause?”

Sotomayor added: “This is no different than a telephone company having access to your telephone conversations.”

On the other side, Justices Samuel Alito and Anthony Kennedy seemed most receptive to the administration’s argument that privacy rights do not come into play when the government gets records from telecommunications providers and other companies that keep records of their transactions with customers.

Carpenter’s attorneys took pains to stress they were not asking the Supreme Court to declare all cellphone data inadmissible in criminal cases. They said it would be OK for police to use cellphone data from a defined period, such as 24 hours, if they had reasonable belief that an individual has committed a crime, but not for police to track a suspect’s movements for months.

“We think that what happened in this case, where the government obtained 127 days of minute-by-minute location records, is a search under the Fourth Amendment that should require a warrant,” said Nathan Freed Wessler, a staff attorney for the ACLU’s Speech, Privacy and Technology Project. “There may be some shorter time that does not infringe on our expectation of privacy.

“Police who are investigating a crime could traditionally have talked to some witnesses and found a few location points in the past, but never before have they been able to chart out so much of our month-by-month location.”

Four men were arrested in April 2011 on suspicion of committing armed robberies at a string of Radio Shack and T-Mobile stores in Metro Detroit.

One of the suspects confessed he played a role in eight of the robberies and identified 15 other participants, including Carpenter, leading federal investigators to ask magistrate judges to OK them obtaining cellphone data for a 127-day period between December 2010 and April 2011 that was used to place Carpenter in the vicinity of the stores that were robbed.

In one case, Carpenter received a call at 10:24 a.m. that was routed through a cell tower near a Detroit Radio Shack that was robbed around 10:35 a.m.

Attorneys for the U.S. Department of Justice argued the cellphone data that was used to incriminate Carpenter was validly collected because it was obtained from a third-party that he was knowingly doing business with.

“The cellphone companies in this case function essentially as witnesses being asked to produce business records of their own transactions with customers,” Deputy U.S. Solicitor General Michael Dreeben told the court. “The cell systems cannot function without information about where the phones are located. Anyone who subscribes to a cellphone service will communicate that information to towers in order to receive calls.

“The cellphone companies get that information to operate the cell network. They choose to make their own business records of that information. It's not a government mandate.”

Alito appeared to agree. He argued most cellphone users are aware by now that their locations are being tracked by their providers.

“I mean, people know, there were all these commercials, ‘can you hear me now?’ ‘our company has lots of towers everywhere,’” he said. “What do they think that's about?”

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.

Justice Stephen Breyer drew parallels to the use of financial data in white-collar criminal cases, which he argued is legally valid, but he said cellphone data is “highly personal info” that could be considered private.

“In respect to the commercial information, banking and, you know, all the things for white-collar crime, it's commercial information,” he said. “And you have the subpoenas, and you can perhaps have the protections there ... but this is highly personal information on a line, you say, it's somewhat closer to the diagnostic testing than it is to purely commercial information.”

Legal observers said the decision could reverberate across the technology industry.

“A Supreme Court that often looks to ‘original intent’ will have to find a way to figure out how to apply the Fourth Amendment, drafted in 1791, to the modern-day problem of electronic surveillance,” said Harry Sandick, a partner at the Patterson Belknap Webb & Tyler LLP law firm in New York, in a statement.

“The Fourth Amendment speaks to one’s right ‘to be secure in their persons, houses, papers and effects.’ Can a person feel such security if the government has the ability to use electronic surveillance to monitor his or her every step, for an indefinite period of time, without obtaining a search warrant?”

The Supreme Court is expected to rule on Carpenter’s case by the end of its current term in June.

Carpenter’s attorneys are hoping the court will rule that the use of his cellphone data was an illegal search, which could result in his original conviction being overturned.

Government lawyers are hoping for a ruling that their use of cellphone data was OK, but they say they hope the court will at least concede some of the short-term records were used legally.

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Twitter: @Keith_Laing

Detroit News Staff Writer Robert Snell and Associated Press contributed.