Digital rights advocates are criticizing the telecom industry's silence on one of the great controversies of our day: whether police need a warrant to track people's location via their cellphones. The U.S. Supreme Court will hear a case on the issue on Nov. 29.
In the case before the court, a man was convicted in two armed robberies. Police relied on cellphone location evidence to prove the man was near the locations of the robberies. They obtained that location evidence, without a warrant, from the man's cellphone carrier.
The ACLU took up the man's appeal, arguing that police should not be able to obtain such information without a warrant. Generally, police need warrants to search or seize an individual's property. Without a warrant, or at least probable cause to believe a crime is being committed, such a search would violate the Fourth Amendment's prohibition of "unreasonable" searches and seizures, the group says.
Law enforcement has been relying on a 1986 law called the Stored Communications Act to obtain location information without probable cause or a warrant. That law allegedly allows searches of business records when a lower standard than probable cause is met. The SCA allows searches when there are "reasonable grounds" to believe the records are material and relevant to an investigation.
The ACLU and other civil liberties groups point out that the 1986 law could not have anticipated the degree to which cellphones would come to contain so much information about an individual's activities and location. The Fourth Amendment, they argue, should prohibit gathering such data under the slim pretext that the information doesn't belong to the individual but is a third-party business record.
The telecom industry has been largely silent on how to balance privacy rights with the interests of law enforcement. Tech firms like Microsoft and Google have actively opposed government attempts to seize personal data on U.S. citizens, but the phone industry has been reticent, with the exception of Verizon. Among American mobile phone carriers, only Verizon joined a legal brief calling for stricter rules around accessing its customers' private data.
Unlike tech companies, however, telecom companies require licenses from the government in order to operate. Those licenses often require the companies to cooperate with government legal processes.
Yet "few private actors have been more involved in the erosion of Americans' privacy than the telecoms, particularly over the last 15 years," said a spokesperson for Columbia University's Knight First Amendment Institute.