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Fourteen of the biggest US tech companies filed a brief with the Supreme Court on Monday supporting more rigorous warrant requirements for law enforcement seeking certain cell phone data, such as location information. In the statement, the signatoriesGoogle, Apple, Facebook, and Microsoft among themargue that the government leans on outdated laws from the 1970s to justify Fourth Amendment overreach. One perhaps surprising voice in the chorus of protesters? Verizon.

Verizon's support means that the largest wireless service provider in the US, and a powerful force in Silicon Valley, has bucked a longtime trend of telecom acquiescence. While carriers have generally been willing to comply with a broad range of government requestseven building out extensive infrastructure to aid surveillanceVerizon has this time joined with academics, analysts, and the companys more privacy-focused corporate peers.

Carpenter v. United States is one of the most important Fourth Amendment cases in recent memory, Craig Silliman, Verizons executive vice president for public policy and general counsel, wrote on Monday. Although the specific issue presented to the Court is about location information, the case presents a broader issue about a customers reasonable expectation of privacy for other types of sensitive data she shares with any third party. Our hope is that when it decides this case, the Court will help us better apply old Fourth Amendment doctrines to an evolving digital era.

From the early days of landlines, telecoms have complied with law enforcement requests for customer data such as call length, location, and who has called whom. As the variety of data customers generate has exponentially expanded and evolved, so has this information gathering by government officials, often under a general mandate and without a case-specific warrant. For its part, Verizon cooperated with the National Security Agency as part of broad bulk surveillance programs for years. Details of this coordination was revealed in NSA documents leaked by Edward Snowden in 2013, but some aspects of it had been publicly debated for years prior.

Carpenter v. United States, which the Supreme Court will hear this fall, relates to the acquisition, without a warrant, of months of individuals location records by law enforcement officials in 2011. Officials looked back on 12,898 location records, spanning a four-month period, of one of these individuals, Timothy Carpenter, to build their case; Carpenter was eventually convicted. His appeal argues that location-data collection by law enforcement without a warrant violates his Fourth Amendment rightsand Verizon agrees.

Verizon stands out because they actually hold the specific kind of location records that are directly at issue, says Nathan Freed Wessler, a staff attorney at the American Civil Liberties Union, which represents Carpenter. The telecoms have a long history in general of cooperating with law enforcement surveillance demands, but I think Verizons participation reflects a growing understanding of the importance of standing up for customers privacy rights."

As the general public becomes increasingly aware of the privacy risks associated with entrusting their data to corporate entities, a strong stance on data protection has been a boon to companies like Apple. This economic incentive may be even stronger for the numerous telecoms that now straddle the line between traditional utility and tech company. Verizon, for example, now owns Yahoo and AOL in addition to its role as a top-four wireless provider in the US.

"At the end of the day, a company like Verizon isnt going to stick its neck out if it doesnt think that theres a business rationale in addition to it being the right thing to do," Wessler says.

Verizon has laid the groundwork for this move for months. Silliman wrote publicly last year about potential Fourth Amendment concerns when telecoms comply with warrantless law enforcement data requests. The company's stand won't necessarily prompt peers to followno other telecoms joined this particular briefbut it still represents a turning point in the dialog between privacy advocates and monolithic telecoms. And in Carpenter v. United States, it's only one of the voices that matters in the larger discussion about data privacy.

"The other tech companies bring the perspective that this case is also about our emails and our smart devices and all the kinds of cloud-stored data that we create in the course of our daily lives now," Wessler says. "The Justices should not be under the misapprehension that they can just try to narrowly apply these outdated precedents from the 1970s in this case. The implications are really huge, and this is the chance to make sure that our understanding of the Fourth Amendment keeps up with digital technology.

More here:
VerizonYes, VerizonJust Stood Up For Your Privacy - WIRED

Several of the largest technology companies in the nation filed a brief urging the Supreme Court to enhance Fourth Amendment protections for consumers by changing the way the amendment is applied to meet the public's expectation of privacy.

Apple, Facebook, Google, Microsoft, Twitter, Verizon, and several other tech companies filed a brief late Monday night in Carpenter v. United States, a case the high court will hear next term regarding the constitutionality of the warrantless search and seizure of cellphone records showing the location and movements of the phone's user.

The tech giants made no explicit statement regarding how they want the case to be decided, but they wrote in their brief that the Supreme Court "should refine the application of certain Fourth Amendment doctrines to ensure that the law realistically engages with Internet-based technologies and with people's expectations of privacy in their digital data."

"The number and variety of organizations and experts filing represent the widespread recognition that your cell phone's location history is your own business, and the government needs to have a good reason to get its hands on it," said Nathan Freed Wessler, a lawyer for the American Civil Liberties Union, in a statement. "In particular, the tech firms are sending a very clear message that the law needs to catch up with the technology that is now an integral part of our everyday lives." The ACLU is one of the groups representing Timothy Carpenter, the petitioner.

No date has yet been set for Carpenter v. United States' oral arguments.

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Apple, Facebook, others urge Supreme Court to change Fourth Amendment privacy doctrines - Washington Examiner

Press Release | August 14, 2017

Reporters Committee for Freedom of the Press and a coalition of 19 other media organizations support requiring the government to obtain warrants for access to cellphone location records

The government should not be able to obtain cellphone location records without first getting a warrant, said Bruce Brown, executive director of the Reporters Committee for Freedom of the Press. The current ruling makes it too easy for the government to track a persons every move through their cellphone, which is especially worrisome if the location records in question belong to a journalist. This endangers journalists ability to gather information and keep the public informed without the risk of being easily and routinely surveilled.

The coalition brief argues that cellphone location records paint an intimate and comprehensive picture of where individuals go, and thus the people and places they associate with.

According to the brief, a journalists cellphone location data can disclose particularly sensitive details about the journalistic process: It can reveal the stories a journalist is working on before they are published, where a journalist went to gather information for those stories, and the identity of a journalists sourcesExposure of sources and journalistic methods can put sources jobs and lives at risk, compromise the integrity of the newsgathering process, and have a chilling effect on reporting.

The brief also argues that if the government can easily and routinely access detailed information about a persons movements without a warrant, it threatens the ability to freely engage in activities protected by the First Amendment like newsgathering, which now often relies on use of a cellphone.

Cellphones have become a mobile newsroom and a necessary newsgathering tool for journalists. Unfortunately, theres no way to use a cellphone without sharing some location data with a service provider, said Brown. Allowing the government to easily access cellphone location records that paint a picture of where a journalist goes and possibly even who they meet with chills reporter-source relationships, threatens newsgathering, and ultimately harms the flow of information to the public.

Continue reading here:
Fourth Amendment protects against warrantless seizure of cellphone location records, amicus brief argues - Reporters Committee for Freedom of the...

If youre following along closely, youll recognize a strong similarity between the brief we filed Friday with the U.S. Supreme Courtin a criminal case called Carpenter v. United States and our argument to a District Court in California two weeks ago that the IRS should not be able to access Bitcoin users data willy-nilly. The theme running through both is that people have property rights in data about themselves that is allocated by contract between them and their service providers. Thats true whether the service being provided is cryptocurrency trading or cellular telecommunications.

In an article I published with the National Constitution Center earlier this year, I laid out a fully consistent way to apply the Fourth Amendment in the digital era. The Supreme Court has struggled with constitutional protections for communications and data, but there doesnt need to be different doctrine for physical things and for digital things. Data can be seized under the Fourth Amendment just like people and cars. Data can be searched just like homes.

In a methodical Fourth Amendment analysis, the next question is who can object to those seizures and searches. Today, various third-party services have control of the data, and some think that closes the question, but it doesnt. The right to possession is only one of the property rights. Those contracts have allocated to consumers the right to exclude othersthat is, to keep strangers away from data about them. The data may sit with a telecom provider, a crypto exchange, a cloud service, or an ISP, but our privacy comes from denying them any right to share data other than with parties agreed to in advance under conditions agreed to in advance.

When possession of data is with a service provider but the right to exclude and other rights are held by the consumer, the consumer has a right against unreasonable searches and seizures. In all but the narrowest of cases involving exigency and similar circumstances, that means the government has to go get a warrant.

Getting courts to recognize property rights in data is a big effort, and itll take a lot of work over a lot of years. But it is essential work because it will determine the shape of our future world.

Theres a path into the future where the Internet revolution causes the individual to become a pawn of governments and corporationsworking together, as often as not, to determine many, many dimensions of how we live and earn. Down the other path is a future where property rights in data make us even more free and autonomous in the digital realm then we are in our homes, neighborhoods, and marketplaces. Heres to charting our course down that second path.

Read the original:
Defending 4th Amendment Privacy Protections for Digital Property - Competitive Enterprise Institute (blog)

View Full Document as PDF

For nearly 40 years,[1] this Court and courts below have struggled with using a sociological method for interpreting the Fourth Amendment in difficult cases. They have asked whether government agents disturbed a reasonable expectation of privacy, reasoning backward from the answer to whether or not a search offensive to the Constitution has occurred.

That methodology has been difficult for courts to apply consistently, and in recent years this Court has used it less and less often as a decision rule. This Court should shed that sociological approach and adopt a juridical method for applying the Fourth Amendment. It should assess the facts of the case in terms of the law, encouraging lower courts to do the same.

Specifically, the Court should examine the following questions:

Using that simple and familiar legal methodology would allow this Court to address directly the challenging questions this case presents, including: When does a seizure of data occur? When does a search of data occur? When is data a constitutional paper or effect? Who has property rights in data sufficient to assert Fourth Amendment rights in it?

The governments compulsory acquisition of data in this case was a seizure. Processing the data to make it human-readable was a search. The records were in relevant part the property of Messrs. Carpenter and Sanders, who enjoyed contractual rights and regulatory protections making them so. And digital documents are best treated as constitutional papers or effects.

That leaves the question whether it was reasonable for the government to seize and search them. There is a presumption in favor of the warrant requirement suggested by the text of the Fourth Amendment, and it is confirmed by this Courts precedents. Thus, it was unreasonable to seize and search the data without a warrant. Lacking exigency or other excuse, the government should have gotten one.

The interests of Messrs. Carpenter and Sanders are not paramount to amici, of course. But as the importance of digital communications and data grows in society, the imperative to straightforwardly address their legal and constitutional status rises.

Without breaking from precedents, this Court can revise Fourth Amendment practice and determine when and how communications and data fit into the Fourth Amendments categories of protected things. Doing so would permit courts below to address seizures and searches of communications and data forthrightly, confidently assessing the reasonableness of such government action. Here, the result of that analysis calls for the Court to find in favor of the petitioner.

Read the full brief here.

[1] Katz v. United States, 389 U.S. 347 (1967), was decided on December 18, 1967.

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Brief of Amici Curiae of CEI, Cato and Reason Foundation in Carpenter v. US - Competitive Enterprise Institute (blog)