New Yorkers have no constitutionally protected right to privacy in information about our whereabouts that can be deduced from the data emitted by our cellphones, an appeals court in Rochester has ruled in a case that underscores the significance of a ruling expected this spring from the U.S. Supreme Court.
Sharhad Jiles was sentenced to 25 years to life in prison after being found guilty in the shooting death of Sheldon Hepburn during a 2011 robbery. At trial, prosecutors used records obtained from the company that provided Jiles’ cellphone service to place him in the location of the murder.
Jiles asked the judge to exclude the records, which revealed his location over a period of four days beginning on the data of the robbery; information that Jiles contended prosecutors needed a warrant to obtain.
Prosecutors had acquired the records, which track every time our cellphones register with the nearest tower, via a subpoena issued to the provider pursuant to the federal Stored Communications Act, which allows the government to obtain such data without a showing of probable cause of a crime. The trial judge sided with prosecutors and Jiles appealed.
On appeal, Jiles argued that so-called cell site location information is protected by the Fourth Amendment by two rulings of the Supreme Court: a 2012 decision that overturned the conviction of a Maryland man based on evidence obtained from a GPS device that police, acting without a warrant, affixed for 28 days to the underside of his automobile; and a 2014 ruling by the court that police may not, without a warrant, search the contents of a cellphone obtained from someone who has been arrested.
The New York court disagreed, citing a series of rulings by federal courts that suspects have no constitutionally protected privacy in records they voluntarily supply to a third party such as checks, deposit slips and other records filed with banks or telephone numbers they dial.
“We remain bound by the third-party doctrine when interpreting the Fourth Amendment [until] a majority of justices on the [Supreme] Court instructs us otherwise,” Justice Gerald Whalen wrote on behalf of the court in a Dec. 22 ruling.
The instruction should arrive this spring, when the Supreme Court is expected to rule in an appeal from Timothy Carpenter, who was convicted and sentenced to 116 years in prison for a series of robberies in Ohio and Michigan.
At trial, prosecutors introduced evidence of Carpenter’s location they gleaned from records obtained from his cellphone provider that revealed his movements over a period of 127 days.
Like Jiles, Carpenter contended that the government should have obtained a warrant for the records, but both the trial judge and the 6th U.S. Circuit Court of Appeals disagreed.
The Supreme Court heard arguments in the appeal on Nov. 29. Nathan Wessler, an attorney with the American Civil Liberties Union who argued on behalf of Carpenter, distinguished business records such as those filed with a bank from the location data collected by the towers that carry calls from our cellphones.
“The information in bank records can be quite sensitive, but what it cannot do is chart a minute-by-minute account of a person’s locations and movements and associations over a long period regardless of what the person is doing at any given moment,” Wessler said in response to a question by Justice Alito.
Such data gives the government “a categorically new power that is made possible by these perfect tracking devices that 95 percent of Americans carry in their pockets,” he said later in response to a question from Justice Kennedy.
Arguing for the government, Deputy Solicitor General Michael Dreeben dismissed the distinction. By obtaining records that reveal a suspect’s historical location, the government “is doing the same thing” it did in the case of bank records, he told the justices. “It is asking a business to provide information about the business’s own transactions with a customer. And under the third-party doctrine, that does not implicate the Fourth Amendment rights of the customers,” Dreeben added.
As Amy Howe at Scotusblog noted, the challenge for the justices may be where to draw the line between information that is entitled to protection of the Fourth Amendment and that which the government can obtain with a subpoena.
“This is highly personal information,” Justice Breyer remarked, referring to location data that can be gleaned from cell towers.
Justice Sotomayor took note of the erosion on privacy that can accompany developments technology. “Right now, we’re only talking about the cell sites records, but as I understand it, a cell phone can be pinged in your bedroom, “she said. “It can be pinged at your doctor’s office. It can ping you in the most intimate details of your life. Presumably at some point even in a dressing room as you’re undressing. So I am not beyond the belief that someday a provider could turn on my cell phone and listen to my conversations.”
Justice Alito pushed back, challenging Wessler to distinguish cell site location data from bank records or telephone numbers called. Cellphone service contracts advise subscribers that the company can disclose location information to the government pursuant to a court order.
Wessler replied that the Stored Communications Act provides two ways the government can obtain records: either by a court order or a warrant. That, he argued, suggests that anyone looking at the law “would be quite reasonable and right to assume that the reason there’s a warrant prong is to deal with records like these in which there’s a strong privacy interest.”
Some experts say the march of technology means it’s time for the court to discard the third-party doctrine entirely. Writing recently in The Washington Post, Bruce Schneier, a technologist and lecturer at Harvard’s Kennedy School, noted that we store most of our data on computers that belong to other people.
“It’s our email, text messages, photos, Google docs, and more — all in the cloud,” Schneier wrote. “All this data will be collected and saved by third parties, sometimes for years. The result is a detailed dossier of your activities more complete than any private investigator — or police officer — could possibly collect by following you around.”
Police should be able to draw on the data to help solve crimes, Schneier said. But they first should be required to have probable cause and obtain a warrant.
“It’s long past time the Supreme Court recognized that… my emails and other personal data deserve the same protections, whether they’re on my laptop or on Google’s servers,” he noted.