Let's Not Embarrass the Future, Please

By Joshua Seidemann, Vice President of Policy, NTCA–The Rural Broadband Association

July 24, 2018

The Supreme Court recently ruled that police must execute a search warrant supported by probable cause before accessing cell-site location information (CSLI). The case, Carpenter v. United States, involved a series of robberies with multiple co-defendants, one of whom was linked to the crimes when his phone's CSLI placed him at or near the scene of several crimes.

Chief Justice John Roberts, who authored the decision, was also the author of Riley v. California, in which the Court ruled that police must execute a warrant before searching a suspect's phone. That case focused on whether a phone would fall under the exemption for warrantless searches that may be conducted as part of lawful arrest. The Court explained that warrantless searches are permitted to (a) preserve evidence that might otherwise disappear, or (b) to protect the arresting officers. As such, unless there was an imminent risk of losing the phone data or fear that the phone might be used as a weapon, police must first obtain a warrant before mining the phone's data.

Both cases speak to the increasing prevalence of technology in our lives. Or, more specifically, technology that can provide third-parties with a stunningly accurate picture of a person's "familial, political, professional, religious, and sexual associations" (see, United States v. Jones, opinion of Sotomayor, J.).

The Carpenter case presented the Court with a novel challenge. On the one hand, people who provide data to third parties are usually presumed to have waived their concerns about keeping that information confidential. So, to the extent that part of one's voluntary phone usage is the understanding that the phone will "check in" with each cell site it visits, then one might argue that the user waived confidentially of the information which it allows the service provider to access. And, to the extent that GPS tracking of a person's movement is permitted, one could argue that CSLI similarly should be obtainable without a warrant.

You were here (your CSLI told me)

Except that unlike GPS data, CLSI data is "detailed, encyclopedic, and effortlessly compiled." Unlike a GPS monitor attached to a car, "[a] phone faithfully follows its owner beyond public thoroughfares and into private residences, doctor's offices, political headquarters, and potentially revealing locales" (the Carpenter decision also notes that 12% of smart phone users admitted to using their phones in the shower). And, unlike the general third-party waiver that might attend other business records, CSLI information is an "exhaustive chronicle of location information casually collected by wireless carriers."

All of this speaks to the challenge of regulators (and the courts) to determine how Constitutional principles promulgated nearly 250 years ago apply to today's technology.

The FCC attempted to address certain broadband privacy issues in 2016 with the imposition of onerous requirements on ISPs. At that time, NTCA explained other actors in the broadband marketplace have far more access and incentive to use data than rural ISPs, and yet those other parties would be governed by more general standards enforced by the Federal Trade Commission. The privacy rules were eventually obliterated by Congress when it exercised the Congressional Review Act (which barred the FCC from implementing those or similar rules). And, NTCA's contentions have been borne out two years later: front page articles in the Wall Street Journal earlier this month described how both Facebook and Google (both in possible violation of both FTC and internal commitments) were allowing third-parties to mine user data.

To be sure, data security and the new world of constant connectivity will present a challenge. The courts are taking steady steps to define how we navigate these frontiers. But, caution (and regulatory humility) will be a core value. As the Carpenter Court advised, former Supreme Court "Justice Frankfurter noted when considering new innovations in airplanes and radios, the Court must tread carefully in such cases, to ensure that we do not 'embarrass the future.'"