Retired Judge: Why Detroit Phone Records Case Affects Your Privacy
September 5th, 2017, 8:08 AM
The writer was a 52nd District Court judge in Novi and assistant state attorney general. He's chief financial officer of the Justice Speakers Institute and a Deadline Detroit contributor.
By Brian MacKenzie
Two men carrying stolen pistols, Jesse Dismukes and David Holland, waited for the phone signal from gang leader Timothy Carpenter on Dec. 1, 2012. Carpenter sat in his Ford Explorer outside a Radio Shack on Gratiot Avenue in Detroit. When signaled, his accomplices pulled their guns, entered the store and forced everyone into a back room.
Then they stole the store’s supply of cell phones. Later, they met at Carpenter’s “baby mama’s house” thinking that, once again, they had gotten away clean.
What Carpenter and his gang did not know was that the FBI was tracking them. Some months earlier four of the gang had been arrested and one of them confessed. He named other gang members, including Carpenter, and as part of the confession gave the police their telephone numbers.
Relying on the Stored Communications Act, which requires phone companies to disclose cell phone records when the government obtains a court order, the FBI had obtained a court order for Carpenter’s phone location records.
The government had to show “specific and articulable facts showing that there are reasonable grounds to believe” that the records sought “are relevant and material to an ongoing criminal investigation.” This is a much lower standard then required by the 4th Amendment for a search.
Complying with the court order, the cell phone company provided more than four months of Carpenter’s location records. This information established that his cell phone had connected with cell towers in the vicinity of about a dozen robberies. He was subsequently arrested and charged with twelve counts of conspiracy and robbery.
The location records were used at trial to prove that Carpenter’s cell phone connected with cell-site towers near the time and place of each of the robberies. The jury convicted him on 11 of the counts and he was sentenced to 116 years in prison.
The Sixth Circuit Court of Appeals upheld the conviction, holding that Carpenter had no reason to believe that his cellphone records would be kept private.
In June of this year, the United States Supreme Court accepted Carpenter’s appeal.
Why it Matters to You
So why should you care about the Supreme Court decision in this case? Certainly Carpenter deserves no sympathy. He led a gang that robbed people throughout the Metro Detroit area. He is a criminal.
However, you should care about the Supreme Court decision. The question of whether cell phone location data is private is important and the outcome will have a significant impact on how much of your life is open to public inspection.
This case is being described as "the most important privacy case in a generation” with enormous implications for our entire society. If the court finds that Carpenter had “no legitimate expectation of privacy” -- which would allow the government’s warrantless seizure of that information -- that is going to directly impact all of us.
Already, phone companies and those companies who provide the apps for them are tracking you. Some, like Accuweather, provide that information to companies that specialize in mobile revenue and leveraging location data for ad targeting.
Critical Privacy Issue
Jon Sriro, a cyber law expert at Jaffe, Raitt, Heuer & Weiss and co-editor of the blog dataprivacylawnow.com, says:
"The issue at the core of this case, is something described as ‘the third-party doctrine.’"
That doctrine says that a person who voluntarily provides information to a third party, say a mobile carrier, has no valid expectation of privacy. Sriro continues:
"If the Supreme Court introduces elements of the mosaic doctrine in its analysis, instead of examining whether a particular act is a search, courts would look at whether a series of acts, that are not searches in isolation, amount to a search when considered as a group. Applying that doctrine would have far reaching privacy ramifications."
"In a criminal scenario, the government is looking at a person or group of people who are engaged what is believed to be criminal activity," asserted Sriro. That's different from online marketers who want access to your locational information to improve how they sell products and services to you. "It will be easier for them," he continued, "to do that if you have no privacy rights.”
Cell phones, and wearable Internet connected devices like the Apple watch, are everywhere. They can provide a detailed complete personal picture. The Carpenter decisions will directly affect how much of your personal life is public information. You should care about that.