Carpenter v. United States: The Threat Posed by Increased Government Access to Business Data

By Evan Dancy, Staff Member (Vol. 16)

Ever since the NSA wiretapping scandal broke in the early 2000s, Americans have lived with the uncomfortable suspicion that the government might be or is keeping active surveillance on the calls we make to our grandmothers or the dog pictures we post to our social media profiles. In fact, the pervasive use of the Internet and social media in our daily lives has assisted law enforcement and government officials in their ability to catch criminals. However, government access to information has also had an adverse effect on our ability to engage in public discourse.

A study conducted after Edward Snowden disclosed government surveillance tactics showed that individuals were less likely to search terrorism-related keywords, such as “dirty bomb” and “suicide attack.” Another study found that individuals who knew the government was surveilling their social media interactions were less likely to share their views when disagreeing with U.S. action. They concluded that “government’s online surveillance programs may threaten the disclosure of minority views and contribute to the reinforcement of majority opinion.” While increased surveillance potentially makes us safer, there is also a concern that growing government surveillance is not only discouraging public discourse but also potentially chilling the democratic engagement of citizens.

How Businesses and Government are Invading Individual Privacy

What if you knew that little device, that almost every American carries, could potentially give the government the ability to listen to your conversations and track your daily movements? Yes, I am talking about your cell phone.

With the rise of targeted advertising, companies are increasingly seeking ways to place their products in front of the people most likely to buy them. Companies, like Alphonso, are utilizing the microphones on cellphones to gather information on what a consumer watches or talks about with his or her friends and family. Data is then aggregated and utilized to send targeted ads about favorite drinks or favorite shows directly to the consumer’s Facebook newsfeed. This information is collected without any knowledge by the cell phone user, and this program and similar programs are found in apps targeted toward younger children. Companies collect the data for marketing purposes, but the government potentially has access to this personal information through the third-party doctrine.

A pending case in the United States Supreme Court involves a challenge to the Stored Communications Act, which allows the government to request without a warrant the cell site location information for any individual whom the government has “reasonable grounds to believe” may have data relevant and material to an ongoing criminal investigation.” In Carpenter v. United States, the FBI obtained a historical record revealing the location and movement of the defendant over a one hundred and twenty-seven-day period. While this case presents obvious Fourth Amendment questions, the Reporters Committee for Freedom of the Press and nineteen other media organizations filed an amicus brief in this case highlighting the chilling effect this type of law has on private citizens and journalists.

To understand their claim, it’s important to understand how cell site information (CSLI) data is gathered. Every time a person receives a call, a text, a Facebook notification, or a news alert, the cell phone in use will connect with the mobile carrier. Then, the carrier notes the phone’s approximate location in relation to the cell tower and saves it to its servers. The pervasive use of cell phones in America and the growing accuracy of data collected by cell phone providers allow the government to track a person’s daily movement. The government standard used to obtain this information is essentially the same standard law enforcement uses for a stop and frisk.

Importance of a Press Free from Intrusive Government Surveillance

The worry of the Reporters Committee for Freedom of the Press and others is that this drastically compromises reporters’ newsgathering ability. For modern reporters, their cell phones are essential tools of the trade that allow them to record interviews, write notes, and take pictures. The government’s ability to track the location of journalists severely compromises their ability to meet with and maintain the confidentiality of their sources. Furthermore, the government could also use knowledge of a reporter’s location to alert itself to journalist-led investigations and make newsgathering of government activity more difficult.

The Stored Communications Act might have made sense when it was passed in 1986, but with the advances in information gathering and the fact that cell phones have become almost an essential tool for our everyday life, this act will be overturned by the Supreme Court. Both sides of the aisle seem to agree on this issue.

In Riley v. California, Justice Roberts writing for the majority of the court, said “[t]he fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought.” Justice Sotomayor during oral arguments compared the extensive potential for data gathering as a “Big Brother” system that “[m]ost Americans want to avoid.” With a President that seems increasingly hostile toward journalists, the Supreme Court should take this opportunity to reaffirm the importance of the press in American democracy. A free and unobstructed press is essential in order to ensure that the people’s right to information is protected and to act as a check on governmental power. Our journalists should not be treated as spies that require government surveillance, but rather should be considered as partners with the government to ensure healthy democratic debate.