At the end of November, the Supreme Court heard opening arguments in Carpenter v. United States, a landmark digital privacy case. At issue is whether or not the police require a warrant to track the location of a smartphone.

The case involves Timothy Carpenter, who was accused of joining several friends in robbing Michigan and Ohio electronics stores between December 2010 and March 2011. Four of his co-conspirators were arrested, and one of them surrendered his phone. A judge granted an order for the FBI to obtain transactional information from the cell phone providers for multiple numbers on the phone. A warrant was not granted, as authorities did not yet have probable cause to request one.

The information retrieved revealed that Carpenter’s phone pinged cell towers in the vicinity of the robberies at the times they took place. This led to him being arrested, convicted, and sentenced to 116 years in prison.

The ACLU, which is representing Carpenter, argues that obtaining those records without a warrant violated his Fourth Amendment Rights against unreasonable search and seizure.

It’s an issue the Supreme Court has touched on in the past. It ruled that when you voluntarily turn data over to a third party, you can’t reasonably expect it to remain private. Tech industry leaders are now arguing that if the police are allowed to freely access cell phone information, nothing will ever truly be private again.

Historical perspective

In the 1970s, the Supreme Court ruled that the police were allowed to log the numbers a crime suspect dialed on his home phone because he had to know that the calls were routed through the phone company. Another similar case allowed bank records to be searched without a warrant.

This precedent is problematic today because practically everything people do involves the transmission of data. We send search queries through Google, Apple can track our GPS coordinates, and we upload personal photos to Facebook.

The Justice Department is insisting that cell-tower records are like the landline and bank records of 40 years ago. Anyone who owns a smartphone knows that cell towers create location records, and using their phones despite this knowledge eliminates any expectations of privacy.

Their argument is firmly opposed by the tech industry. Several industry leaders, including Google, Facebook, Apple, and Microsoft, filed a brief arguing that the analog precedents of the 1970s should not be used to decide cases in 2017. They argued that users today rely on service providers to administer everything from text communications and emails to shopping orders and even fitness data, and not all are aware that in doing so, they accept the risk that their data could be collected and monitored without a warrant.

It appears that many of the Supreme Court justices share that viewpoint. In 2014, the court ruled that a warrant was necessary if the police wanted to search someone’s cell phone, given the fact that phones store so much personal information.  Justice Sonia Sotomayor once commented that even mundane tasks today require people to share their personal information with third parties.

The court is expected to issue its ruling in June.

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