We live at a time where every word we speak into our cell phone, our Alexa, our Onstar, our Google Home and other technological devices is recorded. We may receive the answer to our questions immediately, but the question you uttered remains recorded. Remember that great photograph you posted on Facebook so your friends and family could see the kids and how they are growing? That’s out there too. Who has access to the digital information you are creating each day? What are your rights to privacy in this digital age?
The United State Supreme Court recently took up the question of our right to privacy when reviewing law enforcement’s use of cell phone data in a criminal prosecution. The case is being utilized to predict how other aspects of the technology we use each day may or may not be protected. On Friday, June 22, 2018, the Supreme Court handed down its decision in Carpenter v. United States https://www.supremecourt.gov/opinions/17pdf/16-402_h315.pdf. In a 5-4 ruling, the Supreme Court held that police must generally obtain a warrant to obtain and retain cell phone location data. The plaintiff in that case, Timothy Carpenter, had been previously convicted of armed robbery. He ultimately spent 116 days in prison. During his underlying trial, the prosecution offered evidence of his location during a period of 127 days surrounding robberies for which he was accused. The information came from his cell phone locations during that time. All in all, 12,898 different locations Mr. Carpenter visited were recorded. Law enforcement had obtained the information from a request made to his cell phone carrier.
The Electronic Frontier Foundation provided details in an amicus brief submitted to the Supreme Court in this case. It explained the number of these types of data requests cell phone carriers receive. The most recent data submitted in the brief was from the year 2016. The brief outlined that AT&T received 70,000 requests that year. Verizon received approximately 53,000 such requests.
The question before the Supreme Court in the Carpenter v. United States case was whether the process of accessing historical records of an individual’s past movements through cell phone records constituted a search under the 4 th Amendment of the United States Constitution. Ultimately, the Court held that it was a search and so a warrant supported by probable cause should be required to obtain this type of information.
The decision is garnering a lot of attention with respect to our privacy in the digital age because of the underlying reasons for the Court’s decision. The Supreme Court found that digital data of this kind, records of your location, was of a “deeply revealing nature” and that it constituted, “near perfect surveillance” far beyond the scope of a traditional criminal investigation. The Court also relied heavily on the fact that collection of this data was inescapable due to the automatic nature of the phone’s need to connect with towers to function. A cell phone is constantly searching and re-connecting to the signal provided by towers owned and used by the carrier. In doing so, it is registering the cell phone’s rough location repeatedly. That data can be interpreted along with other cell phone information to determine the physical location of the phone at different points in time. Perhaps most importantly, the Court held that just because this data was gathered by a third-party did not make it any less deserving of protection.
The decision marks an important line in the sand as jurists and scholars try to define our rights to privacy in the digital age. The Court’s decision is largely being interpreted to stand for the propositions that the mere act of using technology should not eliminate your expectation of privacy. The question now becomes how this concept will be expanded to other related digital information platforms and whether law enforcement and other individuals and entities will be allowed to mine for digital information you place out in the world. For example, what about the history of your searches you typed into your Google search bar? What about the information you are using, reviewing and creating in your other phone applications you download and repeatedly access and use throughout your average day? What about the surveillance cameras placed on or near businesses, ATMs or traffic signal lights? How will this information be used? Will it be viewed differently than the information you willingly create and put out there when you fashion your Facebook, Twitter or Linkedin messages?
The law regarding the scope of our expectation of privacy as we digitally communicate is not clear. It is being created as we go. There is no question that the “footprint” you leave behind each day has far greater reach than it once did. Those with technological savvy can learn vast amounts of information about you in a few clicks. So, what steps can you take to protect your privacy? First, put all of your privacy settings on in your various social media accounts. Second, only accept requests to connect from people you know, or businesses you confirm are legitimate and an entity you want to exchange information with. Third, use common sense in your communications. Is the photograph or statement you are about to post one you feel comfortable sharing with the world?
You should always be considering the ramifications of your online activities. Today, employers can and do readily access social media platforms to evaluate candidates. If you are involved in a lawsuit, or may become involved in a lawsuit, the requirements for how your information should be stored, maintained and protected can be very specific. Failures to protect, store and maintain your digital information can have devastating effects on a lawsuit. If you are involved in litigation, you should consult with your attorney for guidance on your social media accounts and appropriate settings, maintenance and safekeeping of your digital information.
In the meantime, Alexa, Siri, your phone, Google and your other digital platforms are listening, watching, recording…you get the idea! Educate yourself about your privacy when using the tools that make your life easier and more enjoyable.