Your smartphone is with you for almost every step you take throughout the day. It’s your lifeline to work, staying connected with friends and family, and a boredom breaker when you’ve got downtime.
What you may not be aware of is that all of your moves are tracked and stored on your phone. And if you are aware, you might be of the mindset that your phone and data stored within is personal and private, so it shouldn’t be a problem. Or so you would assume.
The truth of the matter is that law enforcement can get your phone data from your cellular provider without a warrant and use it against you in a criminal proceeding. On the surface, you would think this is a clear violation of your privacy and Fourth Amendment rights, but it’s not. An antiquated cell phone law known as the Stored Communications Act lets law enforcement skirt these pesky issues in their quest to prove you guilty. It’s maddening to think that the government can simply get a court order to get access to your personal data and use it against you. After all, due process and privacy are guaranteed rights, are they not? Well, not exactly.
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The Right to Privacy: Not as Constitutional as You Would Think
There is no direct statement in the Constitution that says American citizens have a right to privacy. What there is, however, is indirect language in the 4th Amendment that mentions a person’s privacy and possessions along with language in the 5th Amendment that prevents self-incrimination. The ability to “plead the 5th” in court is viewed as the right to protect personal information. Subsequent court rulings that have been handed down over the centuries have served to strengthen these rights, but not in an explicit manner. In theory, a judge could take a literal approach to the Constitution by saying that there is no language that says an individual has a right to privacy and rule in that direction. Legislators can take similar actions when writing law and have done so in the Stored Communications Act.
Understanding the Stored Communications Act
The Stored Communications Act was a set of laws passed in 1986 that bars the searching for/of electronically communicated and stored documents, or emails as we now call them. In 1986, the only thing that was being transmitted and stored in this manner was email. The law did not anticipate the creation of text messages, GPS data, social media, and all of the myriad ways people use their smartphones. As a result, the only communication information that law enforcement needs a warrant for emails. The rest of the information collected by a smartphone falls under something that’s known as “third-party doctrine”.
What is Third-Party Doctrine?
Third-party doctrine revolves around the concept that when an individual gives their personal information to a third party, they give up their “reasonable expectation of privacy.” In other words, when someone gives their personal information to a utility, bank, cell phone service provider, and even an ISP, they give up their right to keep their information private. That means when the police or prosecutor come knocking on the door of the third-party for your information with a court order, the provider has to turn it over even though they may not want to.
How This Affects You in a Court of Law
The lack of cell phone privacy affects you no matter if you are in a civil or criminal proceeding. If your employer somehow gets ahold of information stored on your device and decides that your actions, even though they take place outside of work and do not affect your performance, can be used as a reason for dismissal (Garcia v. City of Laredo, Case No. 11-41118). And if you were in the act of committing a crime with your smartphone tracking your movements via cell phone towers or GPS, that information is transmitted to a third party and is fair game for a prosecutor (Carpenter v. U.S.). The information can be used to convict you in a criminal case even if it’s imprecise. Additionally, smartphone data has been used in many personal injury claims, often to discredit a person claiming to be injured by an accident. Images and videos of physical activity or even positive emotions can often be damaging to the plaintiff’s case – such as in the case of a Home Depot employee who had their “Happy Birthday” messages on social media used to discredit their case.
Carpenter v. U.S. Might Bring Change
Carpenter v. U.S. is a case that has been brought before the Supreme Court and focuses on the aforementioned issues of what feels like privacy violations. Carpenter, or Timothy Carpenter, was implicated in a string of burglaries involving stealing cellphones from retailers. The prosecution used cell tower information, known as triangulation, to determine the approximate location of where Carpenter was on the night of the robberies. The information did not pinpoint his location exactly, and in fact, the closest he was to any given tower was a half mile. However, there was other evidence that clearly incriminated Carpenter as being the person responsible for the thefts.
While Carpenter’s guilt is not in question, what the case did do was start the ball rolling to clear up the question about privacy laws with regards to cell phones. The case focuses on whether the police should have obtained a search warrant before getting location information from the cell phone. As the law currently stands, the police skirted privacy laws by using the Stored Communications Act.
The argument for maintaining the law focus on the fact that law enforcement are able to surveil people through other means and smartphone data belongs in that category. Those who are arguing for more privacy protections and requiring law enforcement to get a warrant are focusing on the fact that law enforcement is acting improperly by going through someone’s data history without permission.
The outcome is anyone’s guess, but data encryption may make the Stored Data Communications Act and Third-Party Doctrine a moot point. And there is no law that requires cellular providers to store cell phone tower data. But for now, smartphone users are better off encrypting their data and using lock screens on their phones in order to protect it from prying eyes no matter who those eyes belong to.