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

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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 was 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.

Health

FCC Proposes Notification Rules for 988 Suicide Hotline Lifeline Outages

The proposal would ensure providers give ‘timely and actionable information’ on 988 outages.

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Photo via Health and Human Services

WASHINGTON, January 26, 2023 – The Federal Communications Commission unanimously adopted a proposal to require operators of the 988 mental health crisis line to report outages, which would “hasten service restoration and enable officials to inform the public of alternate ways to contact the 988 Lifeline.”

The proposal would ensure providers give “timely and actionable information” on 988 outages that last at least 30 minutes to the Health and Human Services’s Substance Abuse and Mental Health Service Administration, the Department of Veteran Affairs, the 988 Lifeline administrator, and the FCC.

The commission is also asking for comment on whether cable, satellite, wireless, wireline and interconnected voice-over-internet protocol providers should also be subject to reporting and notification obligations for 988 outages.

Other questions from the commission include costs and benefits of the proposal and timelines for compliance, it said.

The proposal would align with similar outage protocols that potentially affect 911, the commission said.

The notice comes after a nationwide outage last month affected the three-digit line for hours. The line received over two million calls, texts, and chat messages since it was instituted six months ago, the FCC said.

The new line was established as part of the National Suicide Hotline Designation Act, signed into law in 2020.

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Health

FCC Eliminates Use of Urban-Rural Database for Healthcare Telecom Subsidies

The commission said the database that determined healthcare subsidies had cost ‘anomalies.’

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WASHINGTON, January 26, 2023 – The Federal Communications Commission adopted a measure Thursday to eliminate the use of a database that determined the differences in telecommunications service rates in urban and rural areas that was used to provide funding to health care facilities for connectivity.

The idea behind the database, which was adopted by the commission in 2019, was to figure out the cost difference between similar broadband services in urban and rural areas in a given state so the commission’s Telecom Program can subsidize the difference to ensure connectivity in those areas, especially as the need for telehealth technology grows.

But the commission has had to temporarily provide waivers to the rules due to inconsistencies with how the database calculated cost differences. The database included rural tiers that the commission said were “too broad and did not accurately represent the cost of serving dissimilar communities.”

FCC Chairwoman Jessica Rosenworcel gave an example at Thursday’s open meeting of the database calculating certain rural services being cheaper than in urban areas, when the denser latter areas are generally less expensive.

As such, the commission Thursday decided to revert the methods used to determine Telecom Program support to before the 2019 database order until it can determine a more sustainable method. The database rescission also applies to urban cost determinations.

“Because the Rates Database was deficient in its ability to set adequate rates, we find that restoration of the previous rural rate determination rules, which health care providers have continued to use to determine rural rates in recent funding years under the applicable Rates Database waivers, is the best available option pending further examination in the Second Further Notice, to ensure that healthcare providers have adequate, predictable support,” the commission said in the decision.

Healthcare providers are now permitted to reuse one of three rural rates calculations before the 2019 order: averaging the rates that the carrier charges to other non-health care provider commercial customers for the same or similar services in rural areas; average rates of another service provider for similar services over the same distance in the health care provider’s area; or a cost-based rate approved by the commission.

These calculations are effective for the funding year 2024, the commission said. “Reinstating these rules promotes administrative efficiency and protects the Fund while we consider long-term solutions,” the commission said.

The new rules are in response to petitions from a number of organizations, including Alaska Communications; the North Carolina Telehealth Network Association and Southern Ohio Health Care Network; trade association USTelecom; and the Schools, Health and Libraries Broadband Coalition.

“The FCC listened to many of our suggestions, and we are especially pleased that the Commission extended the use of existing rates for an additional year to provide applicants more certainty,” John Windhausen Jr., executive director of the SHLB Coalition, said in a statement.

Comment on automating rate calculation

The commission is launching a comment period to develop an automated process to calculate those rural rates by having the website of the Universal Service Administrative Company – which manages programs of the FCC – “auto-generate the rural rate after the health care and/or service provider selects sites that are in the same rural area” as the health care provider.

The commission is asking questions including whether this new system would alleviate administrative burdens, whether there are disadvantages to automating the rate, and whether there should be a challenge process outside of the normal appeals process.

The Telecom Program is part of the FCC’s Rural Health Care program that is intended to reduce the cost of telehealth broadband and telecom services to eligible healthcare providers.

Support for satellite services

The commission is also proposing that a cap on Telecom Program funding for satellite services be reinstated. In the 2019 order, a spending cap on satellite services was lifted because the commission determined that costs for satellite services were decreasing as there were on-the-ground services to be determined by the database.

But the FCC said costs for satellite services to health care service providers has progressively increased from 2020 to last year.

“This steady growth in demand for satellite services appears to demonstrate the need to reinstitute the satellite funding cap,” the commission said. “Without the constraints on support for satellite services imposed by the Rates Database, it appears that commitments for satellite services could increase to an unsustainable level.”

Soon-to-be health care providers funding eligibility

The FCC also responded to a SHLB request that future health care provider be eligible for Rural Health Care subsidies even though they aren’t established yet.

The commission is asking for comment on a proposal to amend the RHC program to conditionally approve “entities that are not yet but will become eligible health care providers in the near future to begin receiving” such program funding “shortly after they become eligible.”

Comments on the proposals are due 30 days after it is put in the Federal Register.

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Digital Inclusion

Broadband Breakfast Interview With Michael Baker’s Teraira Snerling and Samantha Garfinkel

Digital Equity provisions are central to state broadband offices’ plans to implement the bipartisan infrastructure law.

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Digital Equity provisions are central to state broadband offices’ plans to implement the Broadband Equity, Access and Deployment grant program under the bipartisan infrastructure law.

In this interview with Broadband Breakfast Editor and Publisher Drew Clark, Michael Baker International Broadband Planning Consultants Teraira Snerling and Samantha Garfinkel go into detail about the role of Digital Equity Act plans in state broadband programs.

Michael Baker International, a leading provider of engineering and consulting services, including geospatial, design, planning, architectural, environmental, construction and program management, has been solving the world’s most complex challenges for over 80 years.

Its legacy of expertise, experience, innovation and integrity is proving essential in helping numerous federal, state and local navigate their broadband programs with the goal of solving the Digital Divide.

The broadband team at Michael Baker is filling a need that has existed since the internet became publicly available. Essentially, Internet Service Providers have historically made expansions to new areas based on profitability, not actual need. And pricing has been determined by market competition without real concern for those who cannot afford service.

In the video interview, Snerling and Garfinkel discuss how, with Michael Baker’s help, the federal government is encourage more equitable internet expansion through specific programs under the Infrastructure Investment and Jobs Act.

The company guides clients to incorporate all considerations, not just profitability, into the project: Compliance with new policies, societal impact metrics and sustainability plans are baked into the Michael Baker consultant solution so that, over time, these projects will have a tremendous positive impact.

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