Slurping people's info without a warrant? That's OUR JOB, Google, Facebook et al tell US Supreme Court

Tech giants lobby against warrantless phone spying

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A group of technology companies with a fondness for data collection have banded together to ask the US Supreme Court to stop the American government from snooping on cellphones without a warrant.

In a friend-of-the-court brief filed on Monday, Airbnb, Apple, Cisco, Dropbox, Evernote, Facebook, Google, Microsoft, Mozilla, Nest Labs, Oath (the company formerly known as Yahoo!), Snap, Twitter, and Verizon joined together in a fit of indignity. Aghast at government disinterest in privacy, they have urged the Supreme Court to make authorities collect cellphone data only within the confines of the Fourth Amendment.

These companies join a bevy of other amici – friends of the court – that have also weighed along similar lines, including media companies, academic experts, and advocacy groups from across the political spectrum.

The case in question, Timothy Ivory Carpenter v. United States, arises from government data collection in 2011. Authorities investigating robberies in and around Detroit obtained several months of cellphone location data without a warrant, including roughly 13,000 locations associated with the plaintiff.

Carpenter was convicted of several electronics store robberies, in part due to location data, and in 2014 sentenced to 116 years in prison. The ACLU is suing to have the location data excluded as evidence, based on its contention that the government violated Carpenter's Fourth Amendment protection from unreasonable search and seizure.

The ACLU argues authorities should get a warrant before being allowed to collect cell phone location data. Authorities obtained the data under the Stored Communications Act, which requires a lesser legal standard than a warrant – reasonable belief rather than probable cause – to access records.

Last year, the Sixth Circuit Court of Appeals ruled 2–1 that a warrant was not required under the Fourth Amendment.

Expectation of privacy

The fourteen tech companies argue that the Fourth Amendment has to adapt to the way technology works. In 1979, the Supreme Court ruled in Smith v. Maryland that a robbery suspect had no reasonable expectation of privacy in relation to dialed phone numbers because he provided that information to the phone company voluntarily.

Today, the data gathering amici insist, the same standard cannot apply. "[T]he analog-era notion that transmission of data to a third party is necessarily 'voluntary' conduct that precludes Fourth Amendment protection should not apply in a world where devices and applications constantly transmit data to third parties by dint of their mere operation," the companies argue.

Many of these same companies, it should be noted, insist that agreeing to their seldom read or understood terms of service agreements signals informed consent to access customer data. They acknowledge that "users of digital technologies reasonably expect to retain significant privacy in that data" even as they carve out an exception: "notwithstanding that technology companies may use or share the data in various ways to provide and improve their services for their customers."

Notwithstanding that technology companies may use or share the data to increase revenue, they are justifiably concerned that lack of a Fourth Amendment barrier will make people think twice about using digital services that create revenue-generating data.

"[W]hen customers transmit personal data to technology companies in the course of using digital products and services, they reasonably expect that data and the metadata generated alongside it to be securely stored and remain private as to the rest of the world," the companies argue in their filing, "They should not be forced to relinquish Fourth Amendment protections against government intrusion simply by choosing to use those technologies."

They should at least be required to click "I agree." ®


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