From Katz to Carpenter: The Supreme Court hears case that could gut privacy in the US

[TalkRadio]

The cellphone is rapidly becoming the most universal accessory among human beings anywhere in the world. The expansion of its use and capability has made the cellphone not just a communications device but the planner, personal computer, mapping mechanism and record storage device for most people.

It has another function that most people do not fully appreciate: tracking device. The use of the cellphone as a surveillance tool is at the heart of a major privacy case heard by the Supreme Court this week in Carpenter v. United States. At issue may be the very future of privacy in America. This argument is occurring almost 50 years to the day that the court issued its historic decision in Katz v. United States, which established the current test for privacy. The question is whether the court will celebrate that anniversary with a new ruling effectively gutting privacy for future generations.

https://jonathanturley.org/2017/12/...gut-privacy-in-the-united-states/#more-132187

 

[Colonel Hogan]

https://jonathanturley.org/2017/12/...gut-privacy-in-the-united-states/#more-132187

From your link:

In 2012, the Supreme Court resisted the encroachment of technological advances in United States v. Jones, when it ruled that police need a warrant to attach a GPS tracker on a car. Now, however, the government can negate that case by just using the cellphone inside the car to achieve that same result. Indeed, the case could negate a host of rulings in allowing the government to follow you within buildings, despite a 2011 ruling barring the warrantless use of thermal devices for such purposes.

So what's the difference between Jones and the current Carpenter case? Had the decision in the Jones case gone the other way, the government could have tracked anyone by trespassing onto their property or lawful possession of physical property (an automobile) for the purpose of surveillance whether they had a cellphone or not. It went one step beyond the wholly legal act of following a suspect while that person was moving about in public.

Carpenter involves the government utilizing information that the suspect is freely broadcasting over an unsecure network ("here I am") to a recipient (the phone company) with whom he does not have a "reasonable expectation of privacy" with respect to the information he is broadcasting (cell phone number, location, time, requested number being called, and call duration). The 1979 case of Smith v. Maryland held that the information freely provided to service providers is information they "own" necessary to providing the requested service and is thus not entitled to a "reasonable expectation of privacy."

But there is an even better reason to impose that interpretation. Regardless of the relationship between sender and service provider recipient, the nature of the metadata signalling information necessary to complete a phone call consisting of a protected private conversation is directly analogous to the address and return address information on a letter traveling through the U. S. Postal Service. That addressing information is freely available to anyone who might glance at the envelope while in transit and is obviously distinguishable in character to the private contents of the letter itself sealed in the envelope.

The fact that the assemblage of cell phone location and addressing information MIGHT allow the reasonable calculation of that individual's movements in public is largely coincidental and does not, by a quirk of technology, transform non-Fourth Amendment protected information into information protected by that amendment.

While the Katz decision DID stand for the proposition that the Fourth Amendment "protects people, not places," it did not stand for the proposition that such protection is available to people "on demand" divorced from a reasonable legal standard of what should and should not be protected. For that standard, we look to the inherent nature of the information, NOT the leveraging of technology with respect to it.

The nature of the information at issue is critical.

The impact of technology is coincidental.

 

[about__aveage]

So what's the difference between Jones and the current Carpenter case? Had the decision in the Jones case gone the other way, the government could have tracked anyone by trespassing onto their property or lawful possession of physical property (an automobile) for the purpose of surveillance whether they had a cellphone or not. It went one step beyond the wholly legal act of following a suspect while that person was moving about in public.

If I recall correctly, it only prohibits them from entering a "secure" area of your property.
If you have a fence with a closed gate around your property, warrant needed.
No fence, no warrant needed.

Carpenter involves the government utilizing information that the suspect is freely broadcasting over an unsecure network ("here I am") to a recipient (the phone company) with whom he does not have a "reasonable expectation of privacy" with respect to the information he is broadcasting (cell phone number, location, time, requested number being called, and call duration). The 1979 case of Smith v. Maryland held that the information freely provided to service providers is information they "own" necessary to providing the requested service and is thus not entitled to a "reasonable expectation of privacy."

That's not what is at issue. It's the cell phone communicating with the cell tower on its own, without the owner doing anything.

But there is an even better reason to impose that interpretation. Regardless of the relationship between sender and service provider recipient, the nature of the metadata signalling information necessary to complete a phone call consisting of a protected private conversation is directly analogous to the address and return address information on a letter traveling through the U. S. Postal Service. That addressing information is freely available to anyone who might glance at the envelope while in transit and is obviously distinguishable in character to the private contents of the letter itself sealed in the envelope.

Not really the same. With a typical letter. the location from which it was posted is known, and the destination, but not all the stops in between.
With a cell phone everywhere between origin and final destination of the person is known.
And now there is no way to prevent that since phones no longer have removable batteries.

I think a strong consideration might be whether people have a reasonable alternative to not having a cell phone in modern society.