Dec 12

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Constitution Check: Should police need a court order to get cellphone call data?



Posted 4 months, 9 days ago.

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Lyle Denniston looks at a Supreme Court precedent that allows police and spy agencies to access your cellphone call records dates back to 1979, and why the Court could take another look at that policy.

iphoneTHE STATEMENT AT ISSUE:

“Have no doubt, police see our mobile devices as the go-to source for information, likely in part because of the lack of privacy protections afforded by the law.  Our mobile devices quite literally store our most intimate thoughts as well as the details of our personal lives.  The idea that police can obtain such a rich treasure trove of data about any one of us without appropriate judicial oversight should send shivers down our spines.”

 – Christopher Calabrese, legislative counsel for the American Civil Liberties Union in Washington, D.C., in a statement on December 9, reacting to a U.S. Senate survey showing that police requests for telephone customers’ call records have nearly doubled over the last five years, with no warrant required most of the time.

WE CHECKED THE CONSTITUTION, AND…

Unless the Supreme Court were to change its mind, and it could, the records of cellphone calls that telephone companies gather – and sometimes share with police — have no constitutional guarantee of privacy.  The records do not typically include what was said on the calls, but only the telephone numbers on each end of those calls and, with the use of cellphone towers, where the phone was used.

But even that information provides police investigating crime with frequently useful data for tracking an individual’s movements, as well as the nature of the persons or places contacted by cellphone.  The simple fact that there has been a surge in police requests to telephone companies for such data is enough to show that investigators find the information very helpful.

Of course, it is not only state and local police officers who are interested in that data.  Recent disclosures of the global telephone data sweeps by the U.S. National Security Agency have shown that cellphone data is a prime target in that terrorism-related investigative process.

Given how widespread cellphone usage is now, and given the heightened sensitivity about privacy in the digital age, it is quite surprising that the Supreme Court laid down the basic constitutional doctrine on police access to telephone company call records more than three decades ago, in 1979.  Not one of the Justices then on the court is still serving today.

In the case of Smith v. Maryland, the Justices faced for the first time the issue of whether the Fourth Amendment’s protection of personal privacy applied to call records compiled by telephone companies.  The specific issue was whether a telephone customer has a “reasonable expectation of privacy” in what those records contain.  The court, in a 5-to-3 decision, said no.  (The key to whether the Fourth Amendment is violated is whether the government has intruded into an area where the public expects that what is said or done will remain private.)

Here is what the Supreme Court majority said specifically:  “We doubt that people in general entertain any actual expectation of privacy in the numbers they dial.  All telephone users realize that they must ‘convey’ phone numbers to the telephone company, since it is through telephone  company switching equipment that their calls are completed. All subscribers realize, moreover, that the phone company has facilities for making permanent records of the numbers they dial, for they see a list of their long-distance (toll) calls on their monthly bills.”

The court thus concluded that Baltimore police did not need a court-approved search warrant when they asked the local telephone company to place a call-number monitoring device on the home telephone of a man suspected of crime.   The data led the officers to that man, and to his criminal contacts.

Lawyers who advise police departments on what they can and cannot do constitutionally, and lawyers who advise the National Security Agency about its monitoring of call data, no doubt regularly rely upon that 1979 ruling to say that there is no need for a warrant to obtain all such records.  (Constitutionally speaking, it should make no difference whether government gets access to the call data of one person, or of tens of millions of cellphone users.  If the individual gets no Fourth Amendment protection, neither does the mass of people.)

The secret federal court that decides whether to allow the NSA to carry on its global system of telephone and Internet monitoring actually has declared that the NSA programs are authorized by that very decision in Smith v. Maryland.  And that is precisely the decision upon which the Obama Administration’s lawyers have relied in defending the NSA’s data sweeps.

As the comment above by a legislative specialist for the ACLU demonstrates, though, there is now a spreading complaint about the lack of constitutional privacy, with the main argument that a 1979 perspective cannot possibly be suitable for the digital age, when the technology for extracting data from mere call numbers is now so much enhanced.

Lyle Denniston is the National Constitution Center’s adviser on constitutional literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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