Your cellphone provider has a homing beacon in your pocket tracking your location with incredible precision. In a surprising op-ed, the top lawyer for Verizon, one of the biggest wireless providers out there, says that phone companies know so much about their customers' whereabouts that the Supreme Court should consider making it harder for the police to get their hands on it.
Across the country, federal appeals courts have been ruling that police don't need a warrant to get a phone company to hand over a history of someone's movements based on the location of their phone. The legal justification is something called the "third-party doctrine," which boils down to the belief that you lose privacy protections to information if you're willing to share it with a third party—in this case, the phone company.
Absent a state or federal law requiring cops to get a warrant to get access to location information, "Supreme Court precedent mandates this conclusion,” said the majority opinion in the most recent federal appeals case on the issue. “For the Court has long held that an individual enjoys no Fourth Amendment protection ‘in information he voluntarily turns over to [a] third part[y].’ … [T]he government does not violate the Fourth Amendment when it obtains historical CSLI [cell site location information] from a service provider without a warrant.”
Verizon's lawyer suggests that legal reasoning is messed up.
Craig Silliman, general counsel for Verizon, wrote in Bloomberg Law that the cases decided by those appeals courts date back to 2010 and 2011, when phone companies actually knew less about their customers' locations, and that the landscape has changed since then, literally. In order to improve their networks, phone companies have rolled out way more infrastructure to improve connectivity, and that infrastructure is capturing customers' locations more precisely.
In 2010, our network was comprised mostly of macro cell sites, or towers, with antennae that covered larger areas. In recent years, in order to fill in coverage gaps between the larger towers and make our network even more dense, diverse and reliable, we have added smaller cell sites. And our customers often use “femto cells” or “network extenders” at their homes or business locations to further improve coverage, especially indoors.
Those added devices mean that, instead of phone companies knowing where you are within a three to ten mile radius, they can now know where you are within 100 to 500 feet.
Additionally, in those cases from 2010 and 2011, phone companies had collected location information from the defendants' cell phones only when they made and received phone calls or sent a text message. But now phone companies get location information every time customers use their smartphones "to access data, such as checking email, watching a video, or using apps."
"The dramatic increase in smart phones and data usage means there is also a sizeable increase in customer location information generated by our network," writes Silliman. That means Verizon, and other phone carriers, now collect "more voluminous and more precise location information." Silliman notes that Verizon holds on to customers' precise movements for 8 days, and more general location information for a year, for "business purposes," such as "to troubleshoot, maximize network efficiency," and probably to sell to advertisers.
And police are coming calling for it. AT&T, the only phone company that provides stats about location information requests by the government in its transparency report, revealed that it was asked to provide historical location information on customers nearly 28,000 times in the first half of this year.
No one is saying that police shouldn't be able to get the information, just that there should be a higher legal barrier for the government to see the history of everyone's movements. Silliman never says outright that police should need to get a probable cause warrant before snooping in customers' location history, but he hints strongly that he, and thus Verizon, lean that way:
The defendants in the two location information cases that were decided this Spring are asking the Supreme Court to review their cases and the third-party doctrine. I think it’s a matter of time before the Court takes a case like this and when it does, I hope that it takes into account how quickly technology—including the volume and precision of location information—is changing.
We already know one Supreme Court Justice likely agrees with him. When the Supreme Court ruled in 2012 that cops need a warrant to put a GPS tracker on someone's car, Justice Sonia Sotomayor wrote a concurring opinion that suggested the third party doctrine needed to be rethought in the modern age. During oral arguments she had raised the point that cops could get the same information sans warrant from people's phones or from satellites looking down at all of us from space. (Right now, cities just use planes.)
"It may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties," Sotomayor wrote. "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."
Nobody who pulls out their phone to play Words With Friends, read a new email, or check Instagram thinks they're making a decision to share their location with their cell phone provider (and the government if they are ever interested).
Civil rights organizations have been complaining about how easy it is for the government to use phone companies to pull up a time machine to see where we've been, but the Supreme Court passed on the issue last year. With Verizon's own lawyer bringing it to attention, perhaps the Justices will hear it now.