March 2nd was a big day – that day in northern California another clash between technology and the constitution took place. Previously, in the David Baust case, a court in the state of Virginia determined that a defendant can be forced to give up his fingerprint, but not his pass code, in order to allow law enforcement to search his or her mobile device. This time, in the matter of the United States versus Elija Cooper, it has been deemed that police officers do not have the right to gain access to your phone’s location history without a search warrant so that for the time being, your phone location data is private.
Why is this news? For the past several years (and honestly forever) technology has been evolving at such a rapid rate that the laws and courts did not know how to handle certain aspects. Seeing courts handle cases with constitutional questions is like watching a kid try to walk for the first time. Honestly, it’s more emberrasing than it is funny. As much as we’d like to think that we are moving forward, the courts, and in some cases legislators too, make sure we don’t take too many leaps forward (see the questions arising in regards to the use of drones). However, this time the courts got it right.
The Case of Elija Cooper
The case is based on a number of different pieces of legislation. The first of them being The Electronic Communications Privacy Act. To sum up the ECPA without too much legal jargon, regulates the way the government can gain access to our information through electronic surveillance.
- Title II of the ECPA, known as the SCA, states that the government may obtain an order to access such records (phone location data) “only if the governmental entity offers specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation.”
- Title III of the ECPA (the “Pen Statute”) stipulates the use of pen registers and trap and trace devices (which are both used to electronically gain access to your private information on your location/source of a electronic transmission), so that the government does not infringe on constitutional rights.
Fortunately, the introduction of the Communications Assistance of Law Enforcement Act (1994) bars the government from obtaining authorization to obtain cell site data by merely showing that its “use is relevant to an ongoing criminal investigation,” – however no standard for obtaining such data was defined, so government entities, such as the police, have continued to act on their own beleifs and interpretation of the law.
The United States saw it this way:
It (the government) may rely on the Pan Statute and SCA to obtain real-time cell site data by bringing forward “specific and articulable facts”, and hence try to go around the CALEA which prohibits the government from obtaining cell site data “solely pursuant to the authority for pen registers and trap and trace devices.”
The government’s mistake: SCA governs access not only to data which is electronically stored at the time the government seeks access to it, but also to data that is not in existence but that will be recorded and stored at some point in the future. Therefore, the Court joins the growing number of district courts which have rejected this stance (a.k.a the Hybrid Theory), as making the opposite decision would practically dismantle the very safeguards Congress meant to put in place by enacting the CALEA and ignore the protection we are guaranteed by The Fourth Amendment.
The Future of Tech and Constitutional Rights
Before taking a look at the future, you’ve got to understand the past. The not so distant past:
– In United States v. Jones, 132 S. Ct. 945 (2012), the Supreme Court held that the installation of a GPS device on the defendant’s car, tracking his movements for a month, violated his rights under the Fourth Amendment. The majority opinion, authored by Justice Scalia and joined by three other Justices, held that the installation of the GPS device constituted a warrantless physical trespass onto the defendant’s property.
– In Riley v. California, the Supreme Court held that the police generally may not, without a warrant, search digital information on a cellphone seized from an individual who has been arrested.
Considering the present case and the ones before it, the future looks bright….(metaphor). Our younger justices understand that there is and was no way for the framers to anticipate the world we live in now. Justice Kennedy has said, “a world in which “the fact that someone arrested for a minor crime has their whole existence exposed on this little device.”, meaning the court does realize the importance of this small device that we so dearly care for.
Technological advances, coupled with declining cost, have rendered cell phones ubiquitous, and for many, an indispensible gizmo to navigate the social, economic, cultural and professional realms of modern society. Jones
This dynamic dictates that many, if not most, will find their cell phone quite literally attached to their hip throughout the day. Cell phones are “such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy. Riley
A cell phone user’s reasonable expectation of privacy in his or her location is especially acute when the call is made from a constitutionally protected area, such as inside a home, but is also reasonable even when the call is made in public (Davis)
Legislation is currently in place. There are those laws that seek to enable each and every person to protect their personal privacy, while there are other pieces of legislation that seek to unite privacy as whole for the entire nation.What we need is for justices to understand that when it comes to privacy, strict scrutiny of the constitution is not the right move. It is not the right move not because we are liberals or conservatives, but rather due to the the way in which we live our lives. The “way we live” has changes. Where and what we once considered our personal sanctuary has changes and will continue to do so today and tomorrow. Now, we just have to hope that this small detail is noticed by the courts (and of course legislators).
Feature Image: Chris Yarzab
