Your Phone Is Like A GPS Ankle Bracelet And Big Brother Is On The Line
Most Australians would react with shock and horror at the prospect of the Government being able to know where they spent last night or how many times they visited the casino last week.
Yet, the 31 million-plus cellphone account holders in Australia are effectively running around our cities and towns with GPS bracelets attached to their ankles. This is because whenever a cell phone connects to a cell tower, a time-stamped record known as cell-site location information (CSLI) is generated. The technology to triangulate this information is becoming so precise that a phone’s location can be pinpointed within 50 metres.
In a major ruling issued in the US on Friday, the Supreme Court ruled that the Government can only gain access to cell-phone location data with a warrant. The court refused to heed the US Government’s pleas that it should get the data without a warrant.
Shouldn’t we expect similar protections here?
Why should Australians walk around with GPS ankle bracelets, unlike their American counterparts?
What’s the case about? Police arrested four men on suspicion of robbing a mobile phone shop in Detroit. One of them confessed to robbing several stores and ratted on his accomplices, providing their mobile phone numbers.
The authorities analysed the call records and sought the call records of another suspect, Timothy Carpenter, under the Stored Communications Act. Under this law, the Government can get access to records when there are “specific and articulable” facts establishing “reasonable grounds to believe” that the records “are relevant and material” to a criminal investigation. This standard is much lower than a warrant.
The Government succeeded in obtaining records from two cellphone carriers amounting to 12,898 location points showing Carpenter’s physical movements over a period of 4 months. Carpenter was present at the robbery locations at the exact time they occurred. The prosecution charged Carpenter with several counts of robbery and weapons possession. He was convicted and sentenced to serve more than 100 years in jail.
Carpenter argued that his Fourth Amendment rights were violated because the government was conducting a search by accessing his call records. The Fourth Amendment protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The federal district and appeals courts held that Carpenter had no expectation of privacy in the information because he had voluntarily shared it with his cell phone carriers.
What did the US Supreme Court Decide?
The US Supreme Court issued a 5-4 decision with Chief Justice John Roberts authoring the majority opinion on behalf of himself and Justices Breyer, Ginsburg, Kagan, and Sotomayor. The court ruled that Carpenter was entitled to Fourth Amendment protection.
The court had to reconcile two strands of legal doctrine to get there -- no protection for information voluntarily divulged to third-parties, versus cases which held a person had an expectation of privacy in her location and movements.
First, the Supreme Court explained that the Fourth Amendment was a response to colonial-era powers “which allowed British officers to rummage through homes in an unrestrained search for evidence of criminal activity”. The Founding Fathers wanted “to place obstacles in the way of a too permeating police surveillance”.
The Chief Justice held that because of “the unique nature of cell phone location records”, the third-party doctrine does not strip Carpenter of his Fourth Amendment rights. Data about a person’s movements are different from bank deposit slips or numbers dialled by a phone -- the latter are business records of the third-party, voluntarily exposed by the provider, and could be sacrificed.
Chief Justice Roberts wrote the “data provides an intimate window into a person’s life”, because his movements reveal “his familial, political, professional, religious, and sexual associations”. The court also acknowledged that “location records hold for many Americans the "privacies of life”, and that a cellphone has become virtually a “feature of human anatomy”.
During oral arguments, Justice Sotomayor had pointedly asked whether it would be acceptable for the government to snoop on Americans in their bedrooms. She had asked the government: “If it’s not okay to put a beeper into someone’s bedroom, why is it okay to use the signals that phone is using from that person’s bedroom, made accessible to law enforcement without probable cause?”
The court appears to be persuaded by her concerns. It is trying to protect against the intrusive surveillance enabled by data on one’s physical movements.
What are the ruling’s implications?
The Government will still be able to get the cellphone data -- but only after it obtains a warrant for ‘probable cause'.
The Court also narrowed its decision -- the warrant requirement may not extend to national security, foreign affairs, security cameras, etc. Roberts didn’t want to “embarrass the future” by getting too ahead of the technology.
The Court also carved out exceptions to the warrant requirement when there is a “need to pursue a fleeing suspect”, to protect people from “imminent harm” or preserve evidence”. Examples of such situations include “bomb threats, active shootings, and child abductions”. In other words, warrants are not necessary in emergencies.
Turning homeward, the decision is a chilling reminder of how little privacy interests are protected in Australia. The government has access to location data and is able to conduct tireless, unforgetting, constant, and systematic surveillance at very little cost.
The old barriers are no longer sufficient to protect privacy and a person’s life can be reconstructed with a high degree of accuracy with cellphone data.
Likewise, location data is not just collected by cellphone carriers. It is also collected by search engines such as Google -- apparently with consent, although most users are unaware they ever provided such consent, or rarely understand the full implications of the collection. Combining information from such sources with cellphone data might make surveillance even more intrusive.
The US Supreme Court has at least applied the brakes to put some limitations on the Government. Now, the Carpenter decision must serve as a wake-up call for Australians if we don’t want to live our lives under Big Brother’s ever-watchful eye.