Carpenter Has Plenty of Privacy, Tech, Police Takeaways, Panelists Say

Chief Justice John Roberts’ decision said law enforcement generally needs a warrant to collect cellphone location data from carriers (see 1806220052). Speaking at a Congressional Internet Caucus event, National Association of Attorneys General Supreme Court Counsel Dan Schweitzer said the decision will affect legitimate criminal investigations lacking probable cause, as location data helps police pinpoint suspects. But he said it could be a relatively small number of cases. Queens County, New York, had 54,000 criminal prosecutions in 2016, but only 92 involved cellsite data access, he said. Deputy Commonwealth's Attorney-Arlington County, Virginia Evie Eastman said financial, credit card and banking records give law enforcement better, more precise information than cellsite data.

That the decision was written by Roberts -- who historically sides with law enforcement in constitutional cases -- shows this is more than just an ideological issue, said Richardson. President Donald Trump’s pick to replace Justice Anthony Kennedy (see 1806280018) will be important, said Schweitzer, but “we can’t pigeonhole that a Republican nominee to the court is going to lean one way on the Fourth Amendment.” The decision means privacy rights are starting to catch up with the modern era, said Richardson, arguing law enforcement shouldn't expect people to opt into government surveillance by simply using technology.

Congress must legislate the issue, providing clear guidance and clear definitions for what data third parties can collect, how data is collected, how long it’s retained and how it’s protected, said Eastman. “We need to have the ability to access data in a consistent manner,” she said. “I would ask and beg Congress to step into this arena and produce legislation that’s uniform, so states can take and model with own their state statutes.”

​​​​​​​Google Senior Privacy Policy Counsel David Lieber said Carpenter​​​​​​​ likely won’t alter the company’s protocol for responding to requests for location-tracking information. Google collection of location information is different from cellsite information, he said, and the platform always required a warrant for the latter: “From a practical standpoint, I’m not sure that a lot is going to necessarily change, at least in that vein.” Google reported that in the second half of 2017, it had about 16,000 requests for location data, 1,334 of which were requests subject to the Carpenter litigation. Location information requests won't be significantly altered, he said. “We’re going to have to look at historically the types of requests we receive, the types of data we’ve been asked to produce.”

​​​​​​​Eastman said it’s ironic Americans are more willing to divulge personal information about their lives on social media than ever, given complaints about privacy and efforts to block law enforcement from the same data. Lieber argued there’s a difference between social media sharing and cellphone data that is collected by police without an individual's knowledge. Just because a person shares information about mundane aspects of life doesn’t mean the government should be able to track that individual for months at a time, said Richardson. Congress has the opportunity to decide whether statutory protections under the Historic Communications Act should be modified and define reasonable privacy expectations, said Lieber.