- The Washington Times - Friday, June 22, 2018

Police will need a warrant if they want to ask cell companies to turn over Americans’ phone location records, the Supreme Court ruled in the latest decision to test the limits of privacy in the digital era.

The 5-4 ruling Friday said police were in fact conducting a Fourth Amendment search and should have gotten a warrant before they asked for the cell tracking data of a man convicted of armed robberies, based in part on prosecutors being able to place him at the locations of the crimes.

Chief Justice John G. Roberts Jr., writing for the majority, said the court in the past has found drivers have limited expectations of privacy on public roads. But he said cell phones have created a “seismic shift” in the amount of data that can be tracked, and it requires an updated approach to privacy.

“A person does not surrender all Fourth Amendment protection by venturing into the public sphere,” he wrote.

The government had argued the information was kept by a third party, the telecommunications company, so it did not violate the suspect’s Fourth Amendment rights. But the court said a company’s constant tracking of an individual carries concerns.

“In light of the deeply revealing nature of [cell-site location information], its depth, breadth, and comprehensive reach, and the inescapable and automatic nature of its collection, the fact that such information is gathered by a third party does not make it any less deserving of Fourth Amendment protection,” Justice Roberts wrote.

Justice Anthony M. Kennedy, writing the chief dissent, said there’s no reason why cell records should be treated different than other requests under the third-party doctrine, such as for financial records.

“The troves of intimate information the government can and does obtain using financial records and telephone records dwarfs what can be gathered from cell-site records,” he wrote.

Chief Justice Roberts said that ignored the broader implications.

“This case is not about ‘using a phone’ or a person’s movement at a particular time. It is about a detailed chronicle of a person’s physical presence compiled every day, every moment, over several years,” he wrote.

The chief justice insisted the ruling was narrow and wouldn’t affect investigators’ ability to use security cameras or other actual surveillance tactics, or to collect other business records. His ruling was joined by the four Democrat-appointed members of the court.

Dissenting were Justices Clarence Thomas, Samuel A. Alito and Neil M. Gorsuch, in addition to Justice Kennedy.

They wondered what other records will fall into the special exception the court has now written for cell location records, and predicted years of follow-up cases with defendants and prosecutors testing the limits.

Civil-liberties activists cheered the ruling.

Sen. Ron Wyden, Oregon Democrat and a frequent critic of government surveillance, said the ruling recognizes new technology creates “near-perfect surveillance.”

“I have argued for years that the sheer volume of information about every single American that is collected by our phones and computers requires a fundamental rethinking of the idea that giving your information to a company means the government can get it, too,” he said.

The ruling is the latest to see the Roberts court grapple with the implications of technology and privacy. In a landmark 2014 ruling the court unanimously ruled police needed a warrant to search through a smartphone’s contents during an arrest. And six years ago the court ruled that attaching a GPS tracking devise on a suspect’s vehicle without a warrant is unconstitutional.

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