Does tracking mobile location breach privacy?

US top court says police need warrant first. How judges addressed a digital issue that matters worldwide.

By: Express News Service | New Delhi | Updated: July 2, 2018 12:50:30 am
Companies' directors to furnish personal mobile numbers for verification: Government In India, central and state law enforcement agencies gain access to cellphone location data whenever service providers, once asked, provide them with call data records. (Representational)

A recent ruling by the US Supreme Court addressed a question that has so far been a grey area in the digital age: can law enforcers tracking a suspect collect location data from cellphone companies? They generally need a warrant, the nine-judge Supreme Court ruled in a 5-4 majority decision that was a statement for a consumer’s privacy rights.

Chief Justice John G Roberts Jr, writing for the majority, noted that the Constitution must take account of vast technological changes, and that digital data can provide a comprehensive, detailed and intrusive overview of private affairs that would have been impossible to imagine not long ago, The New York Times reported. The US court ruling throws the spotlight on the way this aspect of modern technology is being used all over the world.

Police in India

In India, central and state law enforcement agencies gain access to cellphone location data whenever service providers, once asked, provide them with call data records. Apart from helping in investigation of cellphone thefts, this also helped police crack a murder case in Delhi last December, when the suspects had switched off their phones but carried them to the scene of the crime.

Accessing such information is subject to certain permissions. Only an officer of SP rank — DCP rank in a commissionerate — can write to the nodal officer of a service provider seeking call data records. “We need permission from the DCP heading a district or from an ACP if the DCP has vested those powers in him,” a Delhi Police officer said. But can police not misuse these records? “There is self-regulation; there have been instances where policemen illegally obtaining records have been sent to jail,” the officer said.

The US case, Carpenter v United States, involved armed robberies since 2010 in which Timothy Ivory Carpenter was accused of planning the robberies, among other charges. Prosecutors relied on cellphone records that showed Carpenter’s phone was nearby when several of the robberies happened; he was sentenced to 116 years in prison.

Scope of order

The US court ruled that it did not matter that the location records were in the hands of a third party. This marks a break from earlier decisions that went by the “third-party doctrine” — a legal theory that holds that people who voluntarily give information to third parties (service providers in this case) have “no reasonable expectation of privacy”. Lower courts have upheld the search of cell tower records under the third-party doctrine, which was used in earlier Supreme Court cases to uphold government access to suspects’ records, USA Today noted.

The new decision has implications for all kinds of personal information held by third parties, including email and text messages, Internet searches, and bank and credit card records, but Roberts said the ruling had limits. “We hold only that a warrant is required in the rare case where the suspect has a legitimate privacy interest in records held by a third party,” the Chief Justice wrote.

Carpenter’s records, tracked for 127 days, disclosed whether he had slept at home on given nights and whether he attended his usual church on Sunday mornings, the NYT report said. Roberts wrote that the information was entitled to privacy protection. “As with GPS information, the time-stamped data provides an intimate window into a person’s life, revealing not only his particular movements, but through them his ‘familial, political, professional, religious and sexual associations’,” he wrote.

The NYT report refers to the US Stored Communications Act that requires prosecutors to go to court to obtain tracking data; they need to show only that there were “specific and articulable facts showing that there are reasonable grounds to believe” that the records are relevant to an ongoing criminal probe. The court ruled this was insufficient.

The other side

The dissenting judges said the majority observations “will frustrate principled application of the Fourth Amendment in many routine yet vital law enforcement operations”. The US Fourth Amendment protects people from unreasonable searches and seizures by the government, but is not a guarantee against all searches and seizures.

In one dissent, Justice Anthony M Kennedy wrote: “Cell-site records are uniquely suited to help the government develop probable cause to apprehend some of the nation’s most dangerous criminals: serial killers, rapists, arsonists, robbers, and so forth.”
The ruling made exceptions for emergencies like bomb threats and child abductions.

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