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SCOTUS Adopts Digital-Age Privacy Rules06/23 11:09

   Police generally need a warrant to look at records that reveal where 
cellphone users have been, the Supreme Court ruled Friday in a big victory for 
privacy interests in the digital age.

   WASHINGTON (AP) -- Police generally need a warrant to look at records that 
reveal where cellphone users have been, the Supreme Court ruled Friday in a big 
victory for privacy interests in the digital age.

   The justices' 5-4 decision marks a big change in how police may obtain 
information that phone companies collect from the ubiquitous cellphone towers 
that allow people to make and receive calls, and transmit data. The information 
has become an important tool in criminal investigations.

   Chief Justice John Roberts, joined by the court's four liberals, said 
cellphone location information "is detailed, encyclopedic and effortlessly 
compiled." Roberts wrote that "an individual maintains a legitimate expectation 
of privacy in the record of his physical movements" as they are captured by 
cellphone towers.

   Roberts said the court's decision is limited to cellphone tracking 
information and does not affect other business records, including those held by 
banks. He also wrote that police still can respond to an emergency and obtain 
records without a warrant.

   But the dissenting conservative justices, Anthony Kennedy, Samuel Alito, 
Clarence Thomas and Neil Gorsuch, cast doubt on Roberts' claim that the 
decision was limited. Each wrote a dissenting opinion and Kennedy said in his 
that the court's "new and uncharted course will inhibit law enforcement" and 
"keep defendants and judges guessing for years to come."

   Roberts does not often line up with his liberal colleagues against a unified 
front of conservative justices, but digital-age privacy cases can cross 
ideological lines, as when the court unanimously said in 2014 that a warrant is 
needed before police can search the cellphone of someone they've just arrested.

   The court ruled Friday in the case of Timothy Carpenter, who was sentenced 
to 116 years in prison for his role in a string of robberies of Radio Shack and 
T-Mobile stores in Michigan and Ohio. Cell tower records spanning 127 days, 
which investigators got without a warrant, bolstered the case against Carpenter.

   Investigators obtained the records with a court order that requires a lower 
standard than the "probable cause" needed for a warrant. "Probable cause" 
requires strong evidence that a person has committed a crime.

   The judge at Carpenter's trial refused to suppress the records, finding no 
warrant was needed, and a federal appeals court agreed. The Trump 
administration said the lower court decisions should be upheld.

   The American Civil Liberties Union, representing Carpenter, said a warrant 
would provide protection against unjustified government snooping.

   "This is a groundbreaking victory for Americans' privacy rights in the 
digital age. The Supreme Court has given privacy law an update that it has 
badly needed for many years, finally bringing it in line with the realities of 
modern life," said ACLU attorney Nathan Freed Wessler, who argued the Supreme 
Court case in November.

   The administration relied in part on a 1979 Supreme Court decision that 
treated phone records differently than the conversation in a phone call, for 
which a warrant generally is required.

   The earlier case involved a single home telephone and the court said then 
that people had no expectation of privacy in the records of calls made and kept 
by the phone company.

   "The government's position fails to contend with the seismic shifts in 
digital technology that made possible the tracking of not only Carpenter's 
location but also everyone else's, not for a short period but for years and 
years," Roberts wrote.

   The court decided the 1979 case before the digital age, and even the law on 
which prosecutors relied to obtain an order for Carpenter's records dates from 
1986, when few people had cellphones.

   The Supreme Court in recent years has acknowledged technology's effects on 
privacy. In 2014, Roberts also wrote the opinion that police must generally get 
a warrant to search the cellphones of people they arrest. Other items people 
carry with them may be looked at without a warrant, after an arrest.

   Roberts said then that a cellphone is almost "a feature of human anatomy." 
On Friday, he returned to the metaphor to note that a phone "faithfully follows 
its owner beyond public thoroughfares and into private residences, doctor's 
offices, political headquarters, and other potentially revealing locales."

   As a result, he said, "when the government tracks the location of a cell 
phone it achieves near perfect surveillance, as if it had attached an ankle 
monitor to the phone's user."

   Even with the court's ruling in Carpenter's favor, it's too soon to know 
whether he will benefit from Friday's decision, said Harold Gurewitz, 
Carpenter's lawyer in Detroit. The Cincinnati-based 6th U.S. Circuit Court of 
Appeals will have to evaluate whether the cellphone tracking records can still 
be used against Carpenter under the "good faith" exception for law enforcement 
--- evidence should not necessarily be thrown out if authorities obtained it in 
a way they thought the law required. There also is other evidence implicating 
Carpenter that might be sufficient to sustain his conviction.


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