Big Brother looms as U.S. top court
tackles cellphone dispute
Send a link to a friend
[November 30, 2017]
By Lawrence Hurley
WASHINGTON (Reuters) - U.S. Supreme Court
justices signaled on Wednesday they may impose limits on the ability of
police to obtain cellphone data from wireless providers to track the
location of criminal suspects in a major test of privacy rights in the
During arguments in the closely watched case involving a convicted
robber, several of the nine justices across the ideological spectrum
indicated concern about the use of data revealing a suspect's past
locations, based on the cellphone towers that relayed calls, without a
Liberal Justice Sonia Sotomayor sounded the alarm about the increasing
amount of data that the government can potentially obtain, noting that
most Americans "want to avoid Big Brother," referring to the symbolic
all-seeing leader in George Orwell's dystopian novel "1984."
"They want to avoid the concept that government will be able to see and
locate you anywhere you are at any point in time," Sotomayor said.
The court potentially could rule that the practice by law enforcement
authorities of obtaining such data without a warrant amounts to an
unreasonable search and seizure under the U.S. Constitution's Fourth
Amendment. A ruling is due by the end of June.
Such a ruling would have a significant effect on law enforcement
agencies that routinely request and receive this data from wireless
providers in multitudes of criminal investigations as they try to link
suspects to crimes.
The justices heard an extended 80-minute argument in an appeal brought
by a man named Timothy Carpenter, convicted in several armed robberies
at Radio Shack and T-Mobile stores in Ohio and Michigan with the help of
past cellphone location data that linked him to the crime scenes. His
American Civil Liberties Union lawyers have argued that without a
warrant such data amounts to a Fourth Amendment violation.
The legal fight has raised questions about the degree to which companies
protect customers' privacy rights. The big four wireless carriers,
Verizon Communications Inc, AT&T Inc, T-Mobile US Inc and Sprint Corp,
receive tens of thousands of these requests annually from law
There is a possibility the court's four liberal justices could form a
majority with one or more of the five conservatives, potentially
including Chief Justice John Roberts and the court's newest member, Neil
Gorsuch, who raised concerns from a property rights, rather than privacy
The case was heard at a time of increasing concern among many Americans
and lawmakers over surveillance practices of law enforcement and
Roberts mentioned a 2014 Supreme Court ruling he authored that required
police in most instances to obtain a warrant to search a cellphone's
contents when its user is arrested. Roberts reiterated what he said
then, that smartphones packed with data-rich applications are
When Trump administration lawyer Michael Dreeben, defending the use of
the data without a warrant, said people can choose not to sign up for a
phone, Roberts pounced.
[to top of second column]
Kristen Luna of Holland, Michigan, uses her mobile device at the
plaza of the U.S. Supreme Court in Washington, DC, U.S. on June 25,
2014. REUTERS/Gary Cameron/File Photo
"You really don't have a choice these days," Roberts said.
'IN A DRESSING ROOM'
Sotomayor noted that people often have their cellphones at all
times, including in bed. "It can be pinged at your doctor's office,"
Sotomayor said, and during the "most intimate details of your life,
presumably at some point even in a dressing room as you're
Police helped establish that Carpenter was near the scene of the
robberies by securing from his cellphone carrier his past "cell site
location information," which tracks which cellphone towers relay
calls. Carpenter's bid to suppress the evidence failed and he was
convicted of six robbery counts.
Conservative Justice Samuel Alito said a ruling requiring a warrant
"would be revolutionary" because it would upend longstanding
precedent. Alito appeared concerned about setting new limits on the
government's ability to obtain certain business records that
authorities currently can get without a warrant, including bank
"Why is cell site location information more sensitive than bank
records?" Alito asked ACLU lawyer Nathan Wessler, noting that bank
records contain a wealth of information about debit card and other
The Supreme Court twice in recent years has issued major decisions
concerning how criminal law applies to new technology, both times
ruling against law enforcement, including the 2014 case Roberts
mentioned. In 2012, the court also decided a warrant is needed to
place a GPS tracking device on a vehicle.
The ACLU argued police need "probable cause," and therefore a
warrant, to avoid a Fourth Amendment violation. The U.S. Justice
Department said probable cause should not be needed to obtain
customer records under a 1986 federal law called the Stored
Some justices disagreed on how much Americans know about the
prevalence of cellphone data. Sotomayor said Americans do not know
the extent of it, while 81-year-old Anthony Kennedy said even he
knows how much customer data carriers possess.
"If I know it," Kennedy said, "everybody does."
(Reporting by Lawrence Hurley; Editing by Will Dunham)
[© 2017 Thomson Reuters. All rights
Copyright 2017 Reuters. All rights reserved. This material may not be published,
broadcast, rewritten or redistributed.