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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.”

 

Broadband's Impact

Reason 4 to Attend Broadband Mapping Masterclass: Measuring Actual Speeds

The 4th of 5 reasons to attend the Broadband Mapping Masterclass with Drew Clark on 9/27 at 12 Noon ET

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WASHINGTON, September 26, 2022 – The fourth reason to attend the Broadband Mapping Masterclass with Drew Clark on September 27, 2022, is to understand the role that speed tests are playing in the discussion about actual speeds versus available speeds – and its importance for federal and state efforts to distribute broadband infrastructure funds.

Broadband Breakfast is hosting the 2-hour Broadband Mapping Masterclass to help Internet Service Providers, mapping and GIS consultants, and people in everyday communities concerned about broadband mapping.

This 2-hour Masterclass, available for only $99, will help you navigate the treacherous waters around broadband mapping. The live Broadband Mapping Masterclass is being recorded, and those who make a one-time $99 payment will obtain a guaranteed place during the live session.

ENROLL TODAY for our Zoom Webinar through PayPal.

Registrants will also receive unlimited on-demand access to the Masterclass recording. And they will receive Broadband Breakfast’s premium research report on broadband mapping.

Learn More about Why You Should Participate in the Broadband Mapping Masterclass

We’re presenting five additional reasons to attend the Broadband Mapping Masterclass.

Additional reason number 4 to attend the Masterclass

The last time that the federal government initiated a significant effort to fund broadband, in 2009, the United States lacked a basic map of what we at Broadband Breakfast have for years called the Broadband SPARC: Measuring Speeds, Prices, Availability, Reliability and Competition by high-speed internet access providers.

The National Broadband Map was a first effort to measure availability and competition by displaying the individual providers that offered broadband on a Census block level. But it lacked any measure of broadband speeds, prices or the reliability of such information.

Over the past 13 years, we now have a great variety of robust sources of speed test data – as well as significant datasets with information about pricing and reliability of broadband. The Broadband Mapping Masterclass will explore ways in which actual speed data has and can be used to crosscheck the quality of broadband availability data released by the Federal Communications Commission.

By attending the Broadband Mapping Masterclass, you’ll learn what you need to know in order assess the quality of broadband data as made availability by federal and state agencies, and private companies and organizations.

ENROLL TODAY  to find out what happens next.

Learn More about Why You Should Participate in the Broadband Mapping Masterclass

Read more about the reasons to attend the Broadband Mapping Masterclass

ENROLL TODAY

 

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Broadband's Impact

Dianne Crocker: Recession Fears Have Real Estate Market Forecasters Hitting the Reset Button

Growing fears of recession trigger pullback on previous rosy forecasts.

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The author of this Expert Opinion is Dianne Crocker, Principal Analyst for LightBox

The lyrics to “Same As It Ever Was” by the Talking Heads certainly don’t apply to how 2022 is playing out in the commercial real estate market. Two quarters of negative economic growth has put a damper on market sentiment and triggered fears that the U.S. economy is heading for a recession. By midyear, market analysts were taking a good, hard look at their rosy forecasts from the start of the New Year and redrawing the lines.

Once upon a time…

At the start of 2022, forecasters were bullishly predicting that commercial real estate investment and lending levels would be nearly as good as 2021. This was significant, considering that 2021 set new records for deal-making and lending volume as the debt and equity capital amassed during the pandemic while looking for a home in U.S. commercial real estate.

What a difference a few quarters have made. Virtually, all the predictions that started the New Year were obsolete by mid-summer. The abrupt shift in market conditions is palpable and surprised just about everyone. Now, markets are reaching an inflection point that is in sharp contrast with the strong rebound of last year.

The two I’s: Inflation and interest rates

At the core of the recent upset in market sentiment is the persistence of high inflation, which seems to be ignoring all attempts by the Federal Reserve to raise interest rates and bring prices down. Higher inflation is having a ripple effect throughout the economy, pushing up the costs of construction materials, energy, and consumer goods. Among the notable economic indicators showing stress at mid-year was the GDP, which fell for the second consecutive quarter, and the Consumer Price Index, which jumped 9.1% year-over-year in June – the highest increase in about four decades.

In July, the CPI fell to 8.5%, an encouraging sign that inflation was beginning to stabilize. By the latest August report from LightBox, however, hopes were dashed when the CPI showed little improvement, holding firm at a still high of 8.3%.

The market is responding to a higher cost of capital as lenders tap the brakes. As the cost of capital rises with each interest rate hike and concerns of a recession intensify, many large U.S. financial institutions are pulling back on their loan originations for the rest of 2022 and into 2023. This change in tenor is a significant shift, given that 2021 was a record-breaking year for commercial real estate lending. Many lenders have already shifted to a more defensive underwriting position as they look to mitigate risks.

The Mortgage Bankers Association, which had previously predicted that lending levels in 2022 would break the $1 trillion mark for the first time revised their forecast downward in mid-July. By year-end, the MBA now expects volume to be a significant 18% below 2021 levels—and one-third lower than the bullish forecast made in February. Now, investment activity is cooling as higher borrowing costs drive some buyers from the market.

In the investment world, transactions were down by 29% at midyear due to a thinning buyer pool as higher rates impact access to debt capital. Market volatility is causing investors, lenders, and owners to rethink strategies, reconsider assumptions, and prepare for possible disruption.

Looking ahead to year-end and 2023

The rapid and diverse shifts in the market make for an uncertain forecast and certainly a more cautious investment environment. The battle between inflation and interest rates will continue over the near term. As LightBox’s investor, lender, valuation, and environmental due diligence clients move toward the 4th quarter—typically the busiest quarter of the year–unprecedented volatility is driving them to recalibrate and reforecast given recent market developments.

Continued softness in transaction volume is likely to continue as rates and valuations establish a new equilibrium. If property prices begin to level out, there will be more pressure on buyers to consider how to improve a property to get their return on investment. The next chapter of the commercial real estate market will be defined by how long inflation sticks around, how high interest rates go, and whether the economy slips into a recession (and how deeply). The greatest areas of opportunity will be found in asset classes like office and retail that are evolving away from traditional uses and morphing to meet the needs of today’s market. Until barometers stabilize, it’s important to rethink assumptions, watch developments, and recalibrate as necessary.

Dianne Crocker is the Principal Analyst for LightBox, delivering strategic analytics, best practices in risk management, market intelligence reports, educational seminars, and customized research for stakeholders in commercial real estate deals. She is a highly respected expert on commercial real estate market trends. This piece is exclusive to Broadband Breakfast.

Broadband Breakfast accepts commentary from informed observers of the broadband scene. Please send pieces to commentary@breakfast.media. The views reflected in Expert Opinion pieces do not necessarily reflect the views of Broadband Breakfast and Breakfast Media LLC.

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Broadband's Impact

Reason 3 to Attend Broadband Mapping Masterclass: State Maps vs. Federal Maps

The 3rd of 5 reasons to attend the Broadband Mapping Masterclass with Drew Clark on 9/27 at 12 Noon ET

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WASHINGTON, September 23, 2022 – The third reason to attend the Broadband Mapping Masterclass with Drew Clark on September 27, 2022, is to get a handle on what state broadband officers have and are doing with broadband maps.

While much of the action has been at the Federal Communications Commission, after state allocations have been made, funding decisions will ultimately come from state broadband officers.

Broadband Breakfast is hosting the 2-hour Broadband Mapping Masterclass to help Internet Service Providers, mapping and GIS consultants, and people in everyday communities concerned about broadband mapping.

This 2-hour Masterclass, available for only $99, will help you navigate the treacherous waters around broadband mapping. The live Broadband Mapping Masterclass is being recorded, and those who make a one-time $99 payment will obtain a guaranteed place during the live session.

ENROLL TODAY for our Zoom Webinar through PayPal.

Registrants will also receive unlimited on-demand access to the Masterclass recording. And they will receive Broadband Breakfast’s premium research report on broadband mapping.

Learn More about Why You Should Participate in the Broadband Mapping Masterclass

We’re presenting five additional reasons to attend the Broadband Mapping Masterclass.

Additional reason number 3 to attend the Masterclass

The Infrastructure Investment and Jobs Act allocates $42.5 billion for the Broadband Equity, Access and Deployment program. Every state will receive at least $100 million in funding, but the remaining more-than $37 billion will be allocated among states based upon a formula that is primarily determined by their percentage of the unserved population. (According to IIJA, a location is “unserved” if it lacks access to broadband at 25 Megabits per second (Mbps) download and 3 Mbps upload. An area is “underserved” if it lacks 100 Mbps * 20 Mbps broadband.)

That’s where the FCC’s updated broadband map come in: Once challenges to the map are concluded, the National Telecommunications and Information Administration will allocate that $37 billion pool according to the “denominator” that the NTIA reads out from the FCC map.

But state and their broadband offices have a trump card: They can and are developing their own maps to check, verify and challenge the FCC map. Furthermore, they are under no obligation to award funds according to the actual places that the FCC says are unserved or underserved.

In the Broadband Mapping Masterclass, you’ll learn what you need to know in order to tap into these efforts by state broadband offices.

ENROLL TODAY  to find out what happens next.

Learn More about Why You Should Participate in the Broadband Mapping Masterclass

Read more about the reasons to attend the Broadband Mapping Masterclass

ENROLL TODAY

 

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