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In our opinion: Cellphone users should expect a reasonable amount of digital privacy

The Supreme Court should clarify boundaries for the search and seizure of personal location-based data — protecting citizens, and their privacy, in today’s digital era.

Last week, the Supreme Court heard oral arguments for a case that could fundamentally reshape U.S. privacy laws — and current interpretations of a constitutional amendment. Carpenter v. United States contests a key interpretation of the Fourth Amendment called the “third-party doctrine.” This legal theory holds that people have “no reasonable expectation of privacy” when they voluntarily provide personal information to a third party such as a phone company, internet provider or bank.

The case being heard questions the legality of law enforcement accessing and using troves of location-based cellular data to convict a felon. The petitioner, Timothy Ivory Carpenter, was arrested for robbing multiple Radio Shack stores after police used his cellphone number to access incriminating location-based information from his cellular provider. With this data, the police were able to track his movements to 12,898 locations over the course of 127 days. Catching a potential criminal is positive. But what is problematic to current legal precedent on U.S. privacy laws is that this information, obtained without a warrant, tracked Carpenter’s private movements even within his home — a domain protected as private in previous Supreme Court decisions.

Between 1967 and 1979, the Supreme Court established important precedents for what citizens could reasonably expect to be private about their lives. In the decision of Smith v. Maryland, the court established that citizens had no reasonable right to expect that telephone companies would not store and monitor their personal information, including call histories. However, in 1979, the Supreme Court could not have foreseen the access third parties — including telecommunications companies, digital applications, social media platforms and banks — would have to the most intimate moments of citizens’ lives.

In 2012, Justice Sonia Sotomayor agreed that the boundaries of third-party doctrine had been pushed to their limits with the advent of smartphones and widespread access to the internet. She said, “… it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. This approach is ill-suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks."

Sotomayor seemed to hold a similar opinion in Wednesday’s arguments, opining that such warrantless tracking by the government violated a widespread societal expectation that the government would not act as “Big Brother.” It’s always tricky to read oral argument tea leaves, but both Justices Neil Gorsuch and Sotomayor seemed to agree that the Fourth Amendment should be extended to cover the warrantless access of location-based cellular data by law enforcement.

This alliance across philosophies of jurisprudence may result in a majority opinion that extends greater protections to the privacy of citizens’ cellular data. Media entities, including our own, are proponents of transparency and sunshine when it comes to information important to the public. Yet, we also recognize the need to protect certain basic rights. For more than 90 percent of Americans with a cellphone, data are automatically collected by companies, which frequently make location-based data tracking an opt-out, not an opt-in, feature. With this data collection being made a prerequisite of full digital citizenship, it may be time for the Supreme Court to clarify the right to privacy on personal phones where there is a reasonable expectation of privacy as lives are lived increasingly online.