Alert: SCOTUS Hearing Case on Whether or Not Gov’t Can Track Your Phone
02-12-2017 13:21 (local time)

Should government investigators be able to see exactly where you’ve been at every moment, without a warrant?

That’s the important privacy question that the U.S. Supreme Court is tackling later this month, and it could affect everyone who has a cell phone.

At the center of the debate are two opposing sides. Law enforcement agencies insist that cell tower records are fair game, and that they don’t need any type of warrant to access that treasure trove of data.

On the other hand, privacy advocates are crying foul, and claiming that using tower data without a warrant is a breach of Fourth Amendment constitutional rights against unreasonable searches.

Those two arguments will come to a head during Carpenter v. the United States.

“Timothy Ivory Carpenter was convicted of planning, supplying guns and acting as a lookout in the smartphone robberies, which took place in 2010 and 2011,” explained Adam Levin, co-founder of the internet security firm CyberScout, in an opinion piece published by The Hill.

“Key evidence was 127 days of cell tower records that included nearly 13,000 locations Carpenter’s cellphone had been, which were handed over to investigators without a warrant,” Levin wrote. “Carpenter was sentenced to 116.25 years in federal prison.”

In basic terms, your cellphone is constantly communicating with nearby cell towers. Since each phone has a unique identification code, it’s possible for government investigators — or anyone with access, really — to piece together an extremely detailed map of your movements over several hours or days.

This means that anybody with a cell phone can be tracked, without the need for a traditional homing device or separate GPS unit. Almost every modern phone contains its own GPS chip, and it’s increasingly rare to find any American who doesn’t take a phone everywhere.

The problem, according to privacy advocates, is that the laws haven’t been updated since the 1980s.

“[T]he case hinges more specifically on an interpretation the Stored Communications Act of 1986,” Levin wrote.

“Needless to say, it’s an old law that was written when mobile phones were the size of a Scottish terrier.”

To put it plainly, almost nobody carried a cell phone in 1986. In 2017, almost everybody does — and that raises questions about whether a 30-year-old law is applicable or constitutional in the modern world.

The privacy concerns go beyond cellphones, too. There are a variety of common devices that connect to wireless networks. Whether it’s your Kindle e-reader, an Apple smartwatch, or even your OnStar-enabled car, wireless devices are becoming ubiquitous.

“These devices create a forever expanding universe of information that does not enjoy very good protection by way of the Constitution or the businesses that manufacture them,” Levin wrote.

“The radical expansion of things related to us that can be searched and-or seized in the process of conducting a criminal investigation — and the ability to sift through it — is something the Constitution’s authors could not have foreseen.”

It’s a solid point: Either the Constitution still applies even when technology changes, or the entire system of checks and balances is broken.

After all, conservatives believe that the Second Amendment applies to modern AR-15 sporting rifles made from polymer and equipped with holographic sights, even though this technology clearly didn’t exist in 1787.

By the same token, the First Amendment certainly still applies to blog or social media posts on the internet, despite the fact that James Madison most decidedly did not have Wi-Fi.

If the right to bear arms and the freedom of speech are principles that transcend technological changes, then the Fourth Amendment should be seen in the same light.

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