In a 5-4 ruling, the Supreme Court of the United States (SCOTUS) has ruled that police must obtain a warrant before they can access an individual’s cell phone location data. Cell phone service providers routinely keep records of cell phone locations and police have previously been able to access that data without a warrant using so-called “third party” rules. Essentially, if you “voluntarily” agreed to share your location data with a cell phone provider, then the police could use that data to prove that you, or at least your cell phone, was in a specific location at a specific time.
The case was brought by Timothy Carpenter, who had been convicted of a string of armed robberies in Ohio and Michigan partially using data obtained using these “third party” rules that placed him at the scene of the crime. Carpenter argued that this violated constitutional protections against unwarranted searches and seizures and his right to a reasonable expectation of privacy.
A Win For Privacy (and Crypto Users)
Privacy advocates call the Supreme Court ruling a win for private citizens who have a reasonable expectation of privacy. Writing for the majority, Chief Justice John Roberts called cell phone location data a “near perfect” tool for mass surveillance by the state. It would be as if the millions of people in the U.S. who carry a cell phone with them every day were wearing an electronic monitoring ankle bracelet commonly worn by people under house arrest or on probation without knowing it. So it’s no surprise that Constitutional scholars were quick to praise the decision.
“Big Brother is coming and we need to stop it. That seems to be the big takeaway from the opinion,” said Orin Kerr, Fourth Amendment scholar at the University of Southern California. “It almost reflects an anxiety about technology thwarting privacy. If we don’t stop the government here, what will they be able to do?”
This could also be seen as a win for cryptocurrency users who choose to use privacy coins such as DASH in their everyday lives. These are the people who figure it’s nobody’s business if they use DASH to buy lunch and they won’t cry if the police have to do extra work and especially prove that a crime was committed in order to prove that a specific person made a specific transaction in a specific place.
Not An Unlimited Victory
Chief Justice John Roberts was careful to include qualifiers in his opinion, however. Police departments can still collect cell phone location data without a warrant in an emergency situation – if there is a credible bomb threat, for instance. Police can also collect information that is not associated with cell phones, such as bank account information.
Roberts did note, however, that progress that the Founding Fathers could not foresee, such as cell phones, should not be used as an excuse to violate the constitutional rights of private citizens. Essentially, just because 21st century law enforcement personnel could theoretically do something that their 18th century counterparts would not have been able to do does not mean that they have the constitutional grounds to do so.
Although Roberts is a conservative, he was joined in his opinion by the four liberal justices, Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan. The four other conservative justices, Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan, each wrote dissenting opinions.
Why Do Cell Phone Providers Store Your Data?
After every data breach in which credit card information was stolen, a natural question that may have occurred to everyone who got involved in cryptocurrency because they like privacy is, “Why the heck do corporations store people’s credit card information anyway?” A related question on a world where mass surveillance is technically possible might be, “Why do cell phone providers store your location data anyway?”
As always, it boils down to money. Facebook can make money by using its data on you and every other person who has ever used Facebook to deliver better targeted ads. Cambridge Analytica likely meant to monetize your data by selling it directly to advertisers. And, of course, cell phone companies can sell your data to third parties even if they might claim to have properly anonymized it so that you’re just another data point.
It should not even be very surprising that these corporations flinch if regulators and law enforcement personnel so much as sneeze in their direction. Although some of them might put on more of a show of looking out for your rights than others, the fact that it took an employee revolt to get Google to back off from pursuing military contracts should tell you where corporate priorities are: Dollar signs. When the government can cut into your profits with hefty fines, the high cost of regulatory compliance, and even the ability to effectively bar foreign corporations who refuse to comply from operating within the U.S., plus the high costs of duking it out in court, it’s fairly obvious which side corporations that care about profits are going to be on at the end of the day.
What Can You Do?
It might be easy to say that if you have nothing to hide, then you should have nothing to fear. However, you should always assume that corporations care more about their profits than your privacy (hence all the “terms and conditions” documents that nobody reads, which very often give corporations the right to collect data on you) and law enforcement personnel can and will violate your rights if it means making an arrest (hence the necessity of at least one person to fight a conviction all the way to the U.S. Supreme Court just to get law enforcement to acknowledge your Fourth Amendment rights).
Should you care in an environment where the government and corporations are interested in conditioning people not to care so much about privacy – and in fact, make it difficult to function in the 21st century without conveniences like cell phones? The answer may begin and end with whether you believe that privacy coins can somehow be divorced from mobile devices in cases where you want to make the police do extra work to prove that you dined at this restaurant and paid in DASH just minutes before it was robbed. You may start caring when you suddenly become a “person of interest” to law enforcement personnel who are made crabbier by your obvious desire for privacy.
As experts like Brett Frischman and Evan Selinger have stated in books like “Re-Engineering Humanity”, it is very easy to make people act like robots, or “sheeple,” if you prefer that term. People have a natural tendency to follow leaders who can convince them that they have the public’s best interests in mind. Most people care about their own convenience and do not want to think very much about clicking on that “I Agree” button, which makes it very easy for corporations to get away with sneaking a lot of privacy-violating clauses into their Terms and Conditions. You could theoretically opt out, but that means you have to do without cell phones and that Roomba that can connect to Wi-Fi.
So possibly the best thing to do is to be aware of what you’re agreeing to when you agree to those “terms and conditions,” why you’re agreeing to it, and whether you could reasonably do without that Alexa.
And, if you have an entrepreneurial bent, you may be thinking that there is a business opportunity to be had when your primary target audience cares about privacy and your secondary audience just cares about not having their credit card information stolen. If so, great; just let us know when you decide to do an ICO.
(It’d be great if there was some workaround for having to get a good photo of people’s ID cards for KYC purposes, sheesh, shouldn’t that count as another privacy violation? Anyway, KYC requirements assume that people are always going to have access to decent digital cameras.)
Anyway, the most important thing you can do right now is know which questions to ask before you sign that “Terms and Conditions” document and don’t be afraid to walk away if the corporation asks too much of you. Do not assume that refusing to vote means that you can in some way “opt out” of the government’s collection of data on you. News flash: Governments don’t actually care that you don’t vote and won’t care much about you as anything other than a number until the stakes are much higher than the occasional need for public officials to compete for votes. Be aware of your constitutional rights, but also do not assume that the police are necessarily going to care when their ultimate goal is to increase the number of arrests they can make. Some tactics work … and some don’t. You will note that I don’t ask you to live like a complete hermit. Just be smart, be aware of the importance of privacy, and remember that sometimes you will have to choose your battles. The Supreme Court ruling was a win, but is likely to be one of many legal battles in the fight for privacy.