WASHINGTON, June 22, 2018 — People living, working, or traveling in the United States gained a bit more privacy Friday after the Supreme Court found that police must obtain a search warrant before asking wireless carriers to turn over some types records which reveal a mobile phone’s location history.
In the case of Carpenter v. Sessions, a five-justice majority found that prosecutors should have obtained a judge’s consent before asking two wireless carriers to turn over petitioner Timothy Carpenter’s cellular site location information.
The information included 12,898 location points documenting his movements over the course of 127 days. Instead of using the procedures laid out under the Stored Communications Act – which require a lower burden of proof – the high court required the probable cause standard needed for a search warrant.
Writing for himself and the four justices considered to be the court’s liberal wing — Ruth Bader Ginsberg, Stephen Breyer, Sonya Sotomayor and Elena Kagen, Chief Justice John Roberts opined that the “unique nature” of CSLI differentiates it from other kinds of stored data held by a phone company.
That made it subject to the protections of the Fourth Amendment.
A higher expectation of privacy
“Whether the Government employs its own surveillance technology as in Jones or leverages the technology of a wireless carrier, we hold that an individual maintains a legitimate expectation of privacy in the record of his physical movements as captured through CSLI. The location information obtained from Carpenter’s wireless carriers was the product of a search,” he wrote.
Citing United States v. Jones., in which the court ruled that a search warrant is needed to place a GPS tracking device on a suspect’s vehicle, Roberts said Carpenter had a reasonable expectation of privacy when it came to records of his movements, and allowing the government to access those records without a warrant “contravenes that expectation” despite the fact that his phone carrier — not the police — collected the information for commercial purposes.
Roberts also noted that the collection of a person’s mobile phone location records presents “even greater privacy concerns” than tracking a vehicle because people “compulsively carry cell phones with them all the time.”
“A cell phone faithfully follows its owner beyond public thoroughfares and into private residences, doctor’s offices, political headquarters, and other potentially revealing locales,” he explained, comparing the use of phone location records to having GPS ankle monitor which can go back in time attached to any person it wishes to track.
Conservative dissenters found fault with Roberts’ reasoning
Dissenting justices, however, found fault with the majority’s reasoning for a number of reasons.
Justice Anthony Kennedy, a Reagan appointee who is often a deciding swing vote in 5-4 decisions, admonished the majority for an “unnecessary and incorrect” departure from the precedents and principles of the Fourth Amendment that would hinder law enforcement with “undue restrictions” on the ability to investigate violent crimes.
Writing for himself and Justices Clarence Thomas and Samuel Alito, Kennedy explained that cell site location were no different from any other records which are subject to subpoena, adding that mobile phone service subscribers should have no expectation of privacy in them because of their imprecise nature.
But the opinion was also joined by the court’s newest member, Justice Neil Gorsuch, who argued that protecting Americans’ privacy would be easier if the court deep-sixed the current patchwork of case law.
Instead of continuing with an array of laws governing the government’s ability to track people with GPS devices, or by accessing records like CSLI, Gorsuch argued in favor of an approach guided by the specific protections laid out in the Fourth Amendment.
Civil libertarians pleased with the outcome
Despite the court’s clear divisions over this particular case, civil libertarians and privacy advocates hailed the ruling as a victory for Americans’ right to privacy while recognizing the need to update laws governing law enforcement access to personal information in the digital age.
American Civil Liberties Union attorney Nathan Freed Wessler, who represented Carpenter before the Supreme Court, called the decision “a groundbreaking victory for Americans’ privacy rights in the digital age.”
“The government can no longer claim that the mere act of using technology eliminates the Fourth Amendment’s protections. Today’s decision rightly recognizes the need to protect the highly sensitive location data from our cell phones, but it also provides a path forward for safeguarding other sensitive digital information in future cases — from our emails, smart home appliances, and technology that is yet to be invented.”
Sen. Ed Markey, D-Mass., praised the court’s decision as an appropriate 21st century update to fourth amendment jurisprudence.
“Where we go or where we have been is sensitive information that should only be revealed to law enforcement with a warrant. The Court’s decision takes a big step forward for privacy by saying the government can’t track a person’s past movements through the records of their cell phone signal without probable cause,” said Markey, a member of the Senate Commerce Committee.
“Police need a warrant to search an individual’s home, and that will now be the standard for mobile phone location records, as well. We need to continue to update our laws to protect the privacy of Americans in this increasingly digital world,” he said.
However, Markey also acknowledged the need for Congress to update privacy laws for the digital world.
Not all digital data is created equal
Julian Sanchez, a Cato Institute scholar who has written extensively the intersection of technology, privacy, and civil liberties, told BroadbandBreakfast that one positive takeaway from the Carpenter decision is “the idea that not all data is not created equal.
“The fact that some types of information are obtainable from third parties from a subpoena doesn’t mean that every conceivable kind of data — no matter how intimate — is subject to the same rule,” Sanchez said when reached by phone on Friday. “But they don’t say a whole lot about what, other than location, that might be.”
Sanchez cautioned that the narrow nature of the ruling, in which the court took pains to distinguish CSLI as subject to the Fourth Amendment’s protections while still leaving open the possibility that other kinds of data that might reveal location information deserved similar treatment, meant the court did not give much guidance as to what else might be protected.
“There’s a huge quantity of information that third parties retain that is arguable sensitive or intimate or revealing in various ways,” he said, adding that because of a differences between the protections provided by the Stored Communications Act and the Electronic Communications Privacy Act, the same kinds of data can be treated differently by different companies when it comes to allowing the government to access it without a warrant.
For example, Sanchez said differences between the SCA and ECPA mean that if GPS data collected by Google is treated as communications between Google and the owner of a mobile phone, it would not necessarily be given the same protections Carpenter now gives data held by wireless service providers.
Resolving the “incoherence” between the SCA and ECPA should be a priority for lawmakers, Sanchez said.
“One thing Congress could do is step up and say what types of data might be subject to stronger protections, and not just assume that that the only relevant distinction is between communications content and everything else, which is how the law currently treats it.”
Sen. Leahy argues for a new legal paradigm on privacy
Sanchez’s sentiments were echoed in a statement by the ranking member of the Senate Judiciary Committee, Sen. Patrick Leahy, D-Vt., who said Friday’s ruling “perfectly illustrates that old legal constructions, like the third-party doctrine, struggle to keep up with our ‘seismic shifts in digital technology.’
“As more and more of our sensitive information is held by third parties, this decision is a step forward in ensuring that our most private information — our communications, our photos, our financial and medical records, our every location — receives the Fourth Amendment protection it deserves,” said Leahy.
Leahy cautioned that Congress “must not rely on the courts to modernize our antiquated privacy laws” while noting that a bill he co-sponsored with Sen. Mike Lee, R-Utah., would require police to obtain a warrant for the exact type of data at issue in Carpenter, and would close “other major loopholes in protecting our Fourth Amendment privacy rights, like requiring a warrant for electronic content.”
“Congress must not abdicate its own responsibilities as technology advances, and it should quickly take up our legislation to accomplish these key reforms.”
Broadband Breakfast on October 27, 2021 — When ‘Greenfield’ Fiber Meets ‘Brownfield’ Multiple Dwelling Units
What options do owners of, operators in, and tenants within MDUs have for better-quality broadband?
Our Broadband Breakfast Live Online events take place on Wednesday at 12 Noon ET. You can watch the October 27, 2021, event on this page. You can also PARTICIPATE in the current Broadband Breakfast Live Online event. REGISTER HERE.
Wednesday, October 27, 2021, 12 Noon ET — “When Greenfield Fiber Meets Brownfield Multiple Dwelling Units”
Bringing fiber to the premises is sometimes only half the battle. For example, bringing fiber to an MDU may not mean that every tenant will get better-quality broadband. In the case of multiple dwelling units or multi-tenant housing, it isn’t easy to completely rewire an existing building with fiber-to-the-unit. Further, the Biden Administration and the Federal Communications Commission are pushing real estate owners to eliminate or minimize exclusive MDU broadband contacts. What options do the owners of, operators in, and tenants within MDUs have to enjoy both competitive and better-quality broadband?
- Sandra Howe, Board of Directors, Minim
- Pierre Trudeau, President and Chief Technology Officer, Positron Access
- Other Guests have been invited
- Drew Clark (moderator), Editor and Publisher of Broadband Breakfast
Drew Clark, Editor and Publisher of Broadband Breakfast, also serves as Of Counsel to The CommLaw Group. He has helped fiber-based and fixed wireless providers negotiate telecom leases and fiber IRUs, litigate to operate in the public right of way, and argue regulatory classifications before federal and state authorities. He has also worked with cities on structuring Public-Private Partnerships for better broadband access for their communities. Drew brings experts and practitioners together to advance the benefits provided by broadband. He is also the President of the Rural Telecommunications Congress.
As with all Broadband Breakfast Live Online events, the FREE webcasts will take place at 12 Noon ET on Wednesday.
National Non-Profit to Launch Joint Initiative to Close Broadband Affordability and Homework Gap
EducationSuperHighway is signing up partners and will launch November 4.
WASHINGTON, October 18, 2021 – National non-profit Education Super Highway is set to launch a campaign next month that will work with internet service providers to identify students without broadband and expand programs that will help connect the unconnected.
On November 4, the No Home Left Offline initiative will launch to close the digital divide for 18 million American households that “have access to the Internet but can’t afford to connect,” according to a Monday press release.
The campaign will publish a detailed report with “crucial data insights into the broadband affordability gap and the opportunities that exist to close it,” use data to identify unconnected households and students, and launch broadband adoption and free apartment Wi-Fi programs in Washington D.C.
The non-profit and ISPs will share information confidentially to identify students without broadband at home and “enable states and school districts to purchase Internet service for families through sponsored service agreements,” the website said.
The initiative will run on five principles: identify student need, have ISPs create sponsored service offerings for school districts or other entities, set eligibility standards, minimize the amount of information necessary to sign up families, and protect privacy.
The non-profit said 82 percent of Washington D.C.’s total unconnected households – a total of just over 100,000 people – have access to the internet but can’t afford to connect.
“This ‘broadband affordability gap’ keeps 47 million Americans offline, is present in every state, and disproportionately impacts low-income, Black, and Latinx communities,” the release said. “Without high-speed Internet access at home, families in Washington DC can’t send their children to school, work remotely, or access healthcare, job training, the social safety net, or critical government services.”
Over 120 regional and national carriers have signed up for the initiative.
The initiative is another in a national effort to close the “homework gap.” The Federal Communications Commission is connected schools, libraries and students using money from the Emergency Connectivity Fund, which is subsidizing devices and connections. It has received $5 billion in requested funds in just round one.
Steve Lacoff: A New Standard for the ‘Cloudification’ of Communications Services
The cloudification of communications services makes it easy to include voice, data, SMS, and video within any existing service.
The line of demarcation between what has traditionally been considered a telecommunications service was once very clear. It was tangible – there were wires, end points, towers, switches, facilities. Essentially, there was infrastructure required to relay voice or data from point A to point B.
Today that line is fuzzy, if not invisible. The legacy infrastructure remains, but an industry of cloud-based services that don’t require the physical connections has exploded. Voice, data, SMS, and video conferencing can now be conveniently delivered OTT. Enabled by simple API integrations, businesses can embed just one of these services or a complete communications platform-as-a-service (CPaaS) into an app, service, or product.
Cloudification is a game changer
This “cloudification” of communications services makes it easy to include voice, data, SMS, and video within any existing application, product, or service. These are essential components for many business models.
Consider these services we have come to rely on in our daily lives: food or grocery delivery, ride services, and business and personal communications. These require multiple methods of communication with shoppers, drivers, co-workers, watch party groups, and external business partners.
The exciting news is there is no end in sight. Use cases will continue to evolve and growth will continue to skyrocket. The scale cloud delivery accommodates is massive. These untethered, easy to embed communications services are a critical differentiator for both business-to-business and business-to-consumer buyers, and the lifeblood of the businesses providing both the end user subscriptions and the APIs.
In fact, one industry juggernaut saw H1 YoY video application service demand grow nearly 600% in 2020.
Not surprisingly, as business demand for these services increases smaller CPaaS players continue to enter the market to quickly snag market share. According to a recent IDC study, “the global market revenue for CPaaS reached $5.9bn in 2020, up from $4.26bn in 2019, and is expected to reach $17.71bn by 2024.”
Merger and acquisition activity is aligned with this hockey stick growth forecast. Large telcos, SaaS providers, and even other CPaaS providers are all on the hunt. Whether they want to add additional features to punch up their products or eliminate the competition in a very tight, nuanced market, the end game is clear – as the market expands, the players will ultimately contract leaving only the most competitive offerings.
Don’t let communications tax take you by surprise
One of the least understood risks when adding cloud-based voice, data, SMS, or video conferencing to an existing product or service is new eligibility for and exposure to the complex world of communications taxation. Making mistakes can get costly very quickly.
Here are some of the key pitfalls to keep an eye on:
- Expanded nexus: Understanding communications tax nexus is different – and exceptionally more complicated – than sales tax. There are approximately 60,000 federal, state, local, and special taxing jurisdictions, each with uniquely complex rules that tend to change at their own pace. Rules are very different for each service.
- More complex calculations: The more communications services you provide via API, the more complicated communications taxes will be. Each feature can be taxed at different rates in each individual jurisdiction, or the whole bundle can be taxed at one rate. It’s critical to monitor monthly to avoid audit issues.
- Maintaining overall compliance: Just as tax rates and rules need to be maintained, so must tax and regulatory filing forms in each jurisdiction. Some of these are very long and require significant detail. They must be filed in a timely, accurate cadence to avoid additional audit risk.
Bottom line: Don’t assume, be prepared! As these communications services become more pervasive a larger swath of technology providers will find themselves liable for communications tax. The more your business falls behind, the more it can cost you.
It pays to be proactive and prepared. Tax and legal advisory experts can help determine your level of risk, and tax and compliance software providers can help you keep up with changing rules and regulations. Don’t underestimate the ongoing value of networking with peers who are either struggling to answer the same questions or have already overcome the hurdles you’re facing today.
Steve Lacoff is General Manager of Avalara for Communications. With a focus on data, VoIP, and video streaming, Steve has spent 15 years in various product and marketing leadership roles in communications and technology industries, including Disney’s streaming services and Comcast technology solutions. Steve now drives business strategy on today’s changing industry landscape and associated tax impacts. This piece is exclusive to Broadband Breakfast.
Broadband Breakfast accepts commentary from informed observers of the broadband scene. Please send pieces to email@example.com. The views expressed in Expert Opinion pieces do not necessarily reflect the views of Broadband Breakfast and Breakfast Media LLC.
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