Supreme Court Likely to Draw New Lines Around Cellphone Privacy, Cato Hears

Legal theories on privacy protections for cellphone location data will get a refresh when the Supreme Court rules in Carpenter v. U.S. (see 1711290043), panelists said at the Cato Institute Wednesday. The court is likely to rule for Timothy Carpenter, panelists said, citing justices’ questions about the legal foundation for his conviction, which rested on evidence collected in a 127-day search of his cellphone location information. Justices questioned law enforcement reliance upon the long-standing third-party legal doctrine that says users give up their right to privacy when sharing information with a third party. The case raises the question of whether a new line should be drawn around cellphone geolocation information, at the heart of Carpenter, versus information obtained from banking records, credit cards and witness interviews in criminal investigations, said Dan Schweitzer, National Association of Attorneys General Supreme Court counsel. “We’re voluntarily using our cellphones, but is that different from using banks or telephones.” If the court makes a distinction, or limits how much cellphone location can be collected without a warrant, it could “overrule past court precedents,” he said. “Cellphones are a necessity of life -- by necessity they collect personal information,” said Jake Laperruque, Constitution Project senior counsel. “There’s got to be some type of line drawn where third-party doctrine is trumped by a consideration over the sensitivity of the information." Justice Sonia Sotomayor raised this question in oral argument on requiring warrants to look at emails.