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Broadband's Impact

Supreme Court Extends Fourth Amendment Protections To Include Mobile Phone Carrier Location Data

Andrew Feinberg

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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.”

 

Andrew Feinberg is the White House Correspondent and Managing Editor for Breakfast Media. He rejoined BroadbandBreakfast.com in late 2016 after working as a staff writer at The Hill and as a freelance writer. He worked at BroadbandBreakfast.com from its founding in 2008 to 2010, first as a Reporter and then as Deputy Editor. He also covered the White House for Russia's Sputnik News from the beginning of the Trump Administration until he was let go for refusing to use White House press briefings to promote conspiracy theories, and later documented the experience in a story which set off a chain of events leading to Sputnik being forced to register under the Foreign Agents Registration Act. Andrew's work has appeared in such publications as The Hill, Politico, Communications Daily, Washington Internet Daily, Washington Business Journal, The Sentinel Newspapers, FastCompany.TV, Mashable, and Silicon Angle.

Digital Inclusion

Popularity Of Telework And Telehealth Presents Unique Opportunities For A Post-Pandemic World

A survey released earlier this month illustrates opportunities for remote work and care.

Benjamin Kahn

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Screenshot of Hernan Galperin via YouTube

April 20, 2021—A survey conducted by the University of Southern California in conjunction with the California Emerging Technology Fund explored the popularity and availability of opportunities for telework and telehealth in California.

At an event hosted by USC and CETF Monday, experts dissected the survey released earlier this month to explain the implications it may have for the future. Hernán Galerpin is an Associate Professor of Communication at the Annenberg School for Communication, University of Southern California. He served as the lead investigator for the survey, which analyzed Californians’ attitudes towards their new schedules during the Covid-19 Pandemic.

The first statistic Galerpin noted was the extent of broadband growth in California between 2008 and 2021. According to the survey, in 2008, only 55 percent of Californians had broadband coverage. By 2021, the number had risen steeply to 91 percent, with 85 percent of Californian’s utilizing broadband through either a desktop, laptop, or tablet (with the rest connected exclusively through a smartphone).

This is significant because it helps to explain the next statistic Galerpin showed; according to his data, Galerpin stated that approximately 38 percent of employed adults worked remotely five days a week over the course of the pandemic, while 45 percent did not work remotely (17 percent worked between 1-4 days remotely).

When asked how many times they would like to telecommute to work, respondents were most likely to indicate a preference for what they had become accustomed to; those who worked from home five days a week had a 42 percent chance of preferring working from home 5 days a week; those who worked from home three to four days a week had a 35 percent chance of preferring a three to four day telecommute schedule; those who worked remotely one to two days per week had a 56 percent chance of favoring a one to two day telecommuting schedule.

The data collected also indicated that low-income and Hispanic workers were disproportionately unable to telecommute.

Overall, telecommuting five days a week was the most popular option, with 31 percent of total respondents favoring that arrangement. By comparison, only 18 percent of respondents favored a schedule without any telecommuting.

President and CEO of CETF Sunne Wright McPeak called this data “unprecedented,” and stated that broadband had the potential to serve as a “green strategy” that could limit the number of miles driven by employees, and ultimately reduce greenhouse gas emissions as well as other harmful pollutants. According to the data, as many as 55 percent of work commutes could be offset by a reconfigured telecommuting schedule.

The benefits of broadband did not stop there, however. Data also indicated that nearly 70 percent of Californians 65 years and older were able to utilize telehealth services, whether that was over the phone/smartphone or computer. Unsurprisingly, wealthier Californians were also more likely to benefit from telehealth services, with nearly 56 percent of low-income Californians going without telehealth, compared to 43 percent of “not low income” Californians.

An additional positive sign was that the overwhelming majority of disabled individuals were able to utilize telehealth services, with 70 percent of disabled respondents indicating that they were able to do so over the course of the pandemic.

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Education

Multilingual Digital Navigators Crucial For Inclusion

Digital liaisons who speak multiple languages can help guide multilingual communities for the digital future.

Derek Shumway

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Screenshot taken from the Net Inclusion webinar

April 19, 2021 – Encouraging multilingualism among digital navigators will help facilitate better inclusion in digital adoption, experts said last week.

Speaking Spanish is a huge plus for digital navigators in Salt Lake City, Utah, for example, as many of its focused neighborhoods needing to be connected to broadband speak the language,  said Shauna McNiven Edson, digital inclusion coordinator at Salt Lake City Public Library.

Edson and other panelists spoke last Wednesday at the 2021 Net Inclusion Webinar Series hosted by the National Digital Inclusion Alliance, a digital inclusion advocacy group on what skills are needed to become a digital navigator.

At the Salt Lake City Public Library, progress is there but challenges persist for digital inclusion and navigation. Edson said there were about 450 participants in its library program’s group for digital inclusion. However, only about 5 percent of participants, or 22 people, have adequate broadband at home. Seventy-five percent of members said they needed help finding a computer or internet-enabled deice, and 10 percent of its 450 members have contacted the library’s support staff for It issues.

Digital navigators are crucial because they connect community members with the skills and resources they need to become digitally literate and help them get adequate broadband. Navigators can be volunteers or cross-trained staff who already work in social service agencies, libraries, health, and more who offer remote and socially distant in-person guidance. 

Compared to the rest of the country, Salt Lake City is highly connected, said Edson. Every community has a unique demographic make-up, and if the communities who need access to broadband mostly speak Spanish or English or even Mandarin, there should be community anchors with highly trained digital navigators to help the underconnected.

Andrew Au, director of operations at Digital Charlotte, said digital inclusion should include adult education. Every library and public institution that offers internet services should have digital navigators available and onsite to guide individuals in their communities and offer continuing education resources to keep digital skills literacy up, he said.

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Broadband's Impact

Mentorship Instrumental To Women Involvement in Telecom Industry

Experts advise mentorship and encouragement to get more women in the industry.

Derek Shumway

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Photo of Mitsuko Herrera, center, via Montgomery County, Maryland

April 19, 2021 – A group of women were asked to rate gender equality in their workplace on a scale of 1-10. Their average score? About a four. The solution? More mentorship early in their lives.

The women, experts in network companies, spoke at the event, “Women in Broadband: Achieving zero barriers,” hosted by fiber network company Render Networks last Wednesday.

Kari Kump, director of network services at Mammoth Networks, said that in the broadband industry, she rates it a four, and in government jobs, a bit higher at five. Kump said she sees lots of women in marketing positions and non-technical managerial positions that “may oversee tech.” She said the worst gender equality in her view is at the construction site, where women “pay the bills” in the office rather than being out on site.

What’s causing gender inequality? The problem starts long before the job interview. Mitsuko Herrera, from planning and special projects for Montgomery County, said in her current work, only 2 out of 25 colleagues are women.

“The opportunity may be there, but we don’t see a lot of qualified women in the industry,” she said. Even before they reach college, women and girls need to have opportunities for engagement across various industries. Having mentors at an early age would greatly increase women participation and influence at work. In the workspace, praising women privately is just as important as praising them publicly, said Herrera. Women need to know they are supported at all times with all people.

Having better representation at the table is crucial because diverse perspectives affect industry and society for the better, said Laura Smith, vice president of people and culture at Biarri Networks. “The groups making decisions should reflect society,” she said.

And even if there is diversity, it’s not enough to have women at work for diversity’s sake—you also need to listen to that diversity and not ignore it.

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