The Next Frontier in Data Privacy (ep. 51)

June 20, 2019
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This week marks the one-year anniversary of arguably the most important privacy ruling of the digital age. In Carpenter v. the United States, the Supreme Court ruled that police violated the Fourth Amendment when they secured months’ worth of a robbery suspect's location information from his cell phone company without a warrant. Nathan Freed Wessler, the ACLU attorney who argued and won the case, discusses Carpenter’s legacy and where the battle for digital privacy is headed next.

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EMERSON SYKES:
[00:00:05] From the ACLU This is At Liberty. I'm Emerson Sykes, a staff attorney here at the ACLU and your host.

A year ago this week, the Supreme Court handed down probably the most important privacy ruling of the digital age in Carpenter v. the United States. In that case, the police were investigating a string of burglaries and got months of geolocation data for a suspect to tie him to the crimes. The court ruled that the Constitution protects this information and that the police need to get a warrant from a judge before accessing that information from a cell phone company. That decision has all kinds of implications for the digital data we leave behind us as we go about our lives.

So what is the legacy of Carpenter, one year on? Our guest today is well-placed to help us understand how we can hope to protect our privacy, despite the array of digital technologies aimed at tracking our every move and decision. We have in the studio Nathan Freed Wessler, the ACLU attorney who argued and won the case. Nate, thanks very much for joining us. Welcome to the podcast.

NATHAN FREED WESSLER:
Thanks, Emmerson. Happy to be here.

EMERSON:
Nate, can we just start by you giving us a bit of background about what exactly the Supreme Court decided in the Carpenter case.

NATE:
So the Carpenter case it was really about two things.

It was about our location privacy in the digital age. It was a case where police had, in the course of investigating a series of robberies in the Detroit area, they'd gotten a court order, not a search warrant, a court order on a much easier legal standard to get, and sent it to a pair of cellphone companies to get a bunch of suspects historical cell phone location data. This is information that our cell phone companies collect about us anytime we use our phone to make or receive a call, send or receive a text message, or even just make a data connection while the phone is passively sitting in our pocket checking email. And there's this rich trove of location data sitting at the phone companies that can chart our movements really at a minute to minute level in some cases.

[00:02:00] So police had gotten this order to investigate whether some suspects were at the scene of a series of robberies at the times of those robberies. And it turned out Mr. Carpenter was one of the suspects, and when an FBI agent looked at the data, it placed him near the scene of some of these robberies and that became really critical evidence at trial.

What the government argued in this case is that it didn't matter how sensitive this information was, didn't matter that it came from Mr. Carpenter's use of his cell phone, the fact that they got it from the cell phone company, rather than out of Mr. Carpenter's pocket itself, just eliminated any argument under the Fourth Amendment to the U.S. Constitution. That's called the Third Party Doctrine. That argument comes out of a pair of cases from the 1970s about bank records and about the telephone numbers you dial on your phone that routes through the phone companies equipment , and in the 1970s, the Supreme Court had said when you voluntarily turn information over to a company, a so-called third party, you give up all of your privacy rights in it. You know you've turned it over. You've given up control of it. Too bad for you if police go to that company without a warrant to get it.

So when this case eventually made it up to the U.S. Supreme Court, the court had to look at these two kind of intertwined sets of theories, realities, right. One, the tremendous privacy interest we have in a digital record of everywhere we go over time: it reveals, you know, where we sleep at night, where we go during the day, to a doctor's office, to a school council meeting, you name it, it's reflected in your location information. So that on the one hand, and on the other hand, this four-decade-old really legal fiction that says well if a company has it and you've turned it over, too bad for you. And what the court held, and this is really critical, and opens up a whole world of possibility for protecting privacy rights in the digital age, the court held that old Third Party Doctrine doesn't just automatically apply to new digital age types of data, and that because of the sensitivity of this data and because you really can't avoid creating this location data as a modern human being - right, we have to carry phones and if you carry a phone, you can't avoid this location data being gathered. For those reasons the court said, no, we're going to allow more protections. We're going to require a warrant. Police can still get it, but they have to demonstrate probable cause, go to a judge and get their search warrant

EMERSON:
[00:04:11] Thanks, that's a really helpful recap. I think just coming back to a little more detail on what you're talking about in terms of the third party doctrine and this legacy of landlines. One of the things that the court had to decide was whether geolocation data is more like a call log or more like the content of the calls. In order to get a call log in the old days, Bell or whatever the phone company was, you didn't need a warrant to get the call log, but they did need a warrant to get a wiretap to figure out what you were talking about. So the court here really had to decide is geolocation data more like a call log or more like content. And you can imagine that they could have gone either way on that. That's not an easy call.

NATE:
Yeah, you know one of the arguments the government made in this case is exactly this: that there's a difference under the Fourth Amendment between the contents of our communications, right, the words we say on the phone, maybe the email content we write that goes through Google or someone else's servers. So that on the one hand, which maybe should be protected, and then so-called metadata on the other hand, which is everything from the routing information on your email or the number you dial on your telephone or in the government's view, this location data, which they tried to represent as just a routing instruction for the cell phone company. They have to know which cell towers the phone is talking to, to talk to that phone and send its communications onward.

[00:05:29] And the Supreme Court really rejected that as the framing. You know everyone on the court, even the dissenters, agreed that at the least, the contents of our emails, our electronic communications, should be protected. The easiest way to reach that conclusion, is just by an analogy to pre-digital age stuff. Right, it's been the case under constitutional law since the 1800s that when you put a sealed letter in the mail an envelope, you seal it up put it in the Postal Service, police can't open it without a search warrant even though you've entrusted it to a third party, the Post Office. The law has been, you sealed it you did everything you could to protect it, a warrant is required. So by analogy, everyone agreed on the court, well, e-mails are the digital age equivalent of that letter. But what the majority said in addition to that is, we really have to look at the sensitivity of the information and what it tells about a person. And prior to the digital age, police never could have had access to this kind of an incredibly detailed and revealing picture of a person's life, basically at the push of a button. It's just a categorically new power that reveals categorically new and more sensitive types information about people's lives. And that's why it has to be protected.

EMERSON:
What you were able to get the court to decide was that they need a warrant in order to access this information. In practice, how much of a big deal is the warrant? How hard is it for the government to get this information?

NATE:
So, it makes a big difference but it also is not an inseparable barrier to the government getting this information. Law enforcement get search warrants hundreds of times across the country every day. That's the standard that has always applied to searching a person's house, their private belongings, doing an invasive search on their body, in lots of other circumstances. So police are well acquainted with how to demonstrate probable cause to a judge. This is what magistrate judges do every day. They get these applications, they review it, make sure there's probable cause, make sure it's specific enough, and issue their warrants. So police absolutely will still have access to this information. What this ruling does is helps make sure that they're not getting access in just a fishing expedition because they have some minimal reason to think that maybe this is the suspect and maybe their location information will incriminate them. And that's important because a critical purpose of the Fourth Amendment, since it was adopted in the 1700s, it's been to add a little bit of friction into the criminal investigative process to make sure that police are only delving into the most private spaces and types of information in our lives with real good reason signed off on by a judge.

EMERSON:
How have we seen this ruling be implemented in practice? Have other courts adopted this reasoning so far in the last year?

NATE:
[00:07:59] What the Supreme Court, held as a binding matter on lower courts is that for at least seven days or more of this kind of historical cell phone location data, a warrant is required and there's no question now that going forward that's the rule.

Now the court left open a bunch of really important questions that lower courts are just starting to grapple with. One of those questions is whether shorter durations of historical location data should also be protected. The Supreme Court just didn't touch on that question. Another question is what we do with other kinds of location data: real time cell phone location tracking, other kinds of location databases, like from automated license plate reader systems. We're fast approaching a time when it's technologically possible to run network systems of surveillance cameras hooked up to face recognition technology to conduct face surveillance on unprecedented levels that is truly a location tracking method. And then also the court didn't decide what we do with other types of sensitive data held by third parties. Now, the court did make very clear that we don't just automatically now get to apply the Third Party Doctrine, but lower court are going to have to look at different types of data - whether it's medical records, information from so-called smart devices in our homes, or wearable devices that might record heart rate data and decide how sensitive is it. Do people really voluntarily share that information as part of modern life and therefore, should it or should it not be protected by a warrant requirement? And that's starting to work out in the courts.

EMERSON:
I know you said that the court didn't directly decide any of those questions, they were sort of limited to the idea of the geolocation data of a cell phone and the warrant requirement, but when we decided that this was an important case to take up, what were we really worried about?

NATE:
Part of my work here at the ACLU over the last seven or eight years has been identifying types of digital data that we're most concerned about, and that we think this Third Party Doctrine is particularly dangerous as applied to. So certainly these kind of location records were one of those types of data, but there's lots of other stuff out there. And our hope is that now that the Supreme Court has given us this extraordinarily strong statement about the need to have robust privacy protections as to this data that as modern humans we can't avoid creating in our lives, lower courts are going to get the message. And that data it really runs the gamut.

[00:10:08] So for example we're involved in a case right now in the First Circuit Court of Appeals, Federal Court of Appeals, involving sensitive prescription records. New Hampshire, like almost every other state, has a database in which every prescription for a controlled substance issued by a pharmacist in that state, and that's lots of medications - not just the narcotic painkillers but lots of psychiatric medications like Xanax, things like testosterone, taken by transgender men, sleep aids, synthetic marijuana substitutes, taken by AIDS and cancer patients to stimulate appetite - lots of stuff that reveals underlying medical conditions. All those prescriptions are reported to a public health database maintained by the state. And the DEA has been trying to get access to that using just a subpoena, which is really just a piece of paper that they signed by themselves and sent off to the state.

And their argument for why a warrant’s not required is the Third Party Doctrine. They say, “Look you went to your doctor and you told them your ailment, and then, you went to your pharmacist and gave them your prescription slip, and then the pharmacist had to report it as mandated by state law to the secure database. You've given up your privacy interest three times over.” And that, we think, is a really dangerous proposition as to medical records. And the fact that today we can have this humongous digitized database of these records that without legal protections is available for a comprehensive search at the push of a button, is really, really chilling unless the Fourth Amendment says something. And that's just one corner of this kind of data.

[00:11:28] We live in an age now where we no longer hold the keys to our most sensitive details of our lives. It's not just our location data. It's other kinds of information about our bodies, uploaded by wearable devices that's held on the servers of companies tracking our heart rate or our fertility cycles. It's information about the interior of our homes, a smart thermostat that knows when people are home and when not, maybe which rooms they're in, in order to most efficiently control AC and heating, well that means there's a server of a company somewhere that knows your patterns of life, when you're home, how many people there, and there are dozens, hundreds of so-called smart “Internet of Things” devices out there now that chart incredibly detailed pictures of all of our lives. There's smart mattress covers, for example, that are designed to give feedback on people's sleep patterns, but that also mean that stored on a company's server somewhere is information about how many people were in bed, whether they were sleeping or not, how vigorously they were not sleeping, that’s sensitive stuff. And that's the kind of stuff that we should demand the government have to really meet a reasonably high threshold and get a warrant before they can access.

EMERSON:
And are we going to have to litigate this issue app by app, piece of data by piece of data? I think one of the arguments that you just made, and that was most compelling it seemed like to the Supreme Court, was the geolocation data is only the tip of the iceberg: where you are, who you're with, what your body is doing, what decisions you've made - all of those things are are in play.

Is there any hope for our privacy? Are we going to have to--Is this whack a mole? Do we have to really fight this app by app and data by data?

NATE:
In the courts, it's likely to develop data type by data type. You know, part of the reason for that is that much of this body of law gets set by criminal appeals. People generally don't learn that their information has been acquired by the government, in these kinds of situations, unless they are subsequently prosecuted and then they have a right to disclosure from prosecutors. And that means that, in a really important respect, people in criminal trials are the “canary in the coal mine” for the rest of us. But what that means is that courts are only going to be addressing these types of data kind of piece of evidence by piece of evidence, right?

In one trial it might be that law enforcement wants to introduce someone's heart rate data to prove that they were running from the scene of a crime and not sitting on their couch as they say they were. And that kind of a case then calls on the court to say “heart rate data,” sensitive? Protected or not? So it's going to be very much a patchwork in that way. That's not to say though that there isn't very clear guidance from the Supreme Court about what the attributes of data are that should be protected. You know, how detailed it is, how pervasive the data points are, whether it's retrospective, this kind of time machine effect that lets police decide today, they want to rewind and learn everywhere a person has gone, or some other set of data in the past.

[00:14:11] There's also another part of the solution which is legislation, obviously. The courts don't stand alone as the only part of our government that can address this. Congress could step in as to any set of these types of sensitive data. Now, it's been a long time since Congress really regulated this: the statute that the Supreme Court was dealing with that seemed to allow access without a warrant dated to 1986. And so it was really critical that the Supreme Court step in.

Congress could act. More likely, state legislatures can act. And we saw before Carpenter almost a dozen state legislatures requiring a warrant for cell phone location data, in states as diverse as California, and Utah, and Montana, and Maine. And that's critical. And those same states could regulate all these other kinds of types of data too, and that would be an important step forward. But it also probably would still be a patchwork, which means that at the end of the day, when the courts get these questions, it's really important that they give us protective rules.

EMERSON:
It's interesting how the issue of privacy can cut against the sort of classic partisan divides in some ways. Have you found that as a political issue privacy can be uniting?

NATE:
Absolutely. I mean we see that in litigation, right. The Carpenter decision was written by Chief Justice Roberts, he was appointed by a Republican president, he's seen as part of the kind of conservative side of the court. Justice Gorsuch, another conservative, wrote a separate opinion essentially agreeing with our side of the case on different grounds, on kind of more originalist, property-based grounds, although it didn't ultimately decide the issue. And that's been true in other digital privacy cases, a case a few years ago about searching the contents of our cell phones after someone's been arrested, requiring a warrant for that, which is a departure from the old pre-digital rule. That was a unanimous opinion by all members of the Court. A case in 2012 about G.P.S. tracking of cars, where Justice Scalia wrote the majority opinion protecting that data.

[00:16:02] So it's true in the courts and it's also definitely true in state legislatures where we see legislatures in red states and blue states passing privacy protective laws. We see coalitions of conservative and liberal and progressive members of these legislatures joining together and cosponsoring these measures. It really is an issue where I think everybody can personally see the impact of living in a society where the government has carte blanche to start digging into the most detailed and sensitive parts of our lives without a warrant. And so it's,it's kind of an obvious outcome that we need better rules.

EMERSON:
[00:17:59] Has there been any impact on police practice? Is there anything that you hope or are looking for law enforcement officers to do differently in light of the Carpenter decision?

NATE:
Well, I mean, we certainly are hopeful that police are going to see the writing on the wall and start seeking warrants more often even for the types of data where courts haven't gotten around yet to issuing a decision. And that's important so that police can insulate their cases from potentially being struck down later. I mean there is a real self-interest, if you're a police officer, in doing it right the first time to avoid a defendant in a future case challenging successfully this data and maybe getting it thrown out. So there's a value to the criminal justice system.

There's also a value in terms of accuracy for police getting warrants, right? This is part of the vision of the Fourth Amendment's framers, that we don't want police just barging into everyone's house who if they have some inchoate hunch might have done a thing. We want them to focus on the real suspects based on real evidence and real reason and that's true of the digital age searches, too. So I think it helps focus investigations and many police departments recognize that.

[00:17:35] The other part of the equation here, beyond the courts and legislatures and police, are the companies themselves. And you know this really is a totally new situation we find ourselves in at this scale, where the gatekeepers to our most sensitive data are not ourselves, not the locks on the doors of our houses, but it's these dozens maybe hundreds of companies that hold various types of our data. And so it's been important in recent years that companies have started to, as a matter of policy, set more protective rules. So Google for example, after a court of appeals opinion in the middle the country, out of the 6th Circuit Court of Appeals in 2010, dealing with whether a warrant is required for the contents of our emails, came out the right way: that Court of Appeals decision said that a warrant’s required but it only was binding within four states. Google then set a net nationwide policy saying, police, if you come to us looking for the contents of people's emails, you have to get a warrant. And law enforcement decided to start complying with that. They, I think, understood that this was probably a losing argument on their side. Courts were going to agree with a warrant position eventually.

And soon after Google adopted that policy, the other major email providers adopted it, and it meant that as a practical matter, even though the U.S. Supreme Court hadn't spoken on it, a warrant was the rule. That's critical. It's also critical that those companies inform people when their data is requested without a warrant, otherwise we have no way to know and no way to defend our own rights. So I-- you know, I hope that the confluence of these factors is going to mean more protective rules in practice more of the time.

But that said we have seen over and over and over again in this country law enforcement agencies doing everything they can to get the most stuff with the least oversight. And so that's why it's really important that courts clearly set the rules to protect us all.

EMERSON:
You mentioned the dozens or hundreds of companies that had some piece of our data trail. Is it a different calculation when it's actually just a few huge companies that actually control all of these apps and different mechanisms through which we're sharing our information?

NATE:
Yeah, I think it can kind of cut both ways in the law enforcement context. I mean on the one hand, I think there is a dynamic where the biggest companies that have the most public scrutiny, may feel the most pressure to have strong protective policies.

EMERSON:
[00:19:52] Think about the big four here obviously.

NATE:
Right. I think that's part of the story about why Google as to email kind of took a strong position earlier. They wanted to be out in front. They started to want to compete on privacy grounds, and in recent years, you know, customer privacy has become an issue that more people in the public and the press are paying attention to. So that is one dynamic. At the same time, there's a kind of keys to the kingdom problem. In other words, if we are entrusting a small number of companies to hold the vast majority of our sensitive data, that means it's a one-stop shop for law enforcement to get access to that stuff. And if we don't have the right legal regimes and the right privacy protective policies on the companies’ ends, that can leave an incredible array of really sensitive stuff open to the taking by the government without the right constraints.

EMERSON:
So as you're fighting this out in the courts, you and other colleagues and coalition members, what can individual consumers do? What kinds of actions can they take now to protect their own privacy and then also maybe to push broader public policy in the right direction?

NATE:
Yeah. So there are some things at a technological level in terms of the settings on a smartphone, for example. that people can do to protect their privacy. And there are other things that really we can't do anything about and we need legal rules. You know, location data is a good example of that.

One of the reasons it was so critical that the U.S. Supreme Court reached the decision it did in the Carpenter case is that short of turning off your phone or putting it in airplane mode, turning off the radio receivers on it, you cannot stop the phone company from collecting that location data, right? You either render your phone into a paperweight, and your location’s private from the phone company, or you leave it as a functioning phone and then your location history is tracked. And in that situation, we really needed either good legislative oversight, which we didn't have, or we needed a strong constitutional rule.

[00:21:40] But, there are lots of other actors out there, other than the phone company and the government, that want access to our sensitive location data, for example. All the apps, the manufacturers, purveyors of these apps, on our phones for marketing reasons, for resale, for ad targeting, lots of invasive things that many of us think are offensive or unnecessary. And as to those, there is a lot you can do. So on modern cell phone operating systems, iPhone or or Android, there are location privacy settings, and it's possible to turn off location tracking as to all apps, or to choose permissions per app to say “this app can never access my location information,” “this app can only access it if I actually have the app open.” So for example, a mapping app you can ensure that it's not tracking, you know, your location in the background when you don't think you're using the map but only when you actually have it open, or you can say, no, I trust this app, it's doing some useful thing for me in the background. I want to give it access all the time. And that kind of granular choice is really important to let people decide for themselves where their threshold of comfort is as to different kinds of uses of this really sensitive data.

EMERSON:
I just got a new phone, so I've been deep in my settings trying to figure out what apps are tracking me and where, and I remember a few years ago hearing a story about these messenger apps that you wouldn't necessarily think of as location related, but these messenger apps were tracking location even while you didn't have the messenger on and how much information could be could be gleaned from there.

NATE:
Yeah, I mean there's, there's a tremendous commercial push on the back end to gather as much information as possible by these companies so they can resell it, package it. There's a whole ecosystem of these data aggregators that then try to create detailed profiles of where everyone is going, where they're spending money, how they're living their lives. Our information is worth a whole lot of money and we're not the ones getting paid for it, which means it's really important to do what we can with these tools.

[00:23:31] Now, it doesn't fix everything, and we learn regularly about apps that are flouting the rules, that are collecting information that even the operating system makers, Google or Apple, say they don't know about. But that's not to say there's not a lot we can do. But you know, there are lots of ways even to track location, right. So the location privacy function on a phone deals with the G.P.S. chip on the phone and whether an app can get information from that. There was just a really good explanatory piece in The New York Times a few days ago about Bluetooth beacons being used to track phones, right. So, Bluetooth it’s a totally different communication system on the phone, separate from the G.P.S. system. It's useful to have your phone talk to your car or your wireless headphones or your speaker. But, turns out, many, many businesses, companies that run consumer outlets, retail stores around the country, have installed Bluetooth beacons whose sole purpose is to be able to identify and track customers as they come into the stores and figure out exactly where they're going within those stores so that they can start targeting ads, creating profiles that they can then use for advertising or remarketing purposes.

And so you have to be aware that you should probably turn your Bluetooth beacon off too on your your phone, and that's a separate setting, wouldn't be obvious. You know, as I describe more and more of that kind of technical means that you can take, I think, for me, it just foregrounds the importance of us having a better legal regime to protect this stuff, right? And location data is certainly a category of information that should be protected. But that's certainly not the only category.

EMERSON:
Well it's a really complicated picture. I mean you've talked about all the different types of data, the different actors involved, and even the story of Mr. Carpenter himself is complicated because, you know, his case gave birth to this privacy protecting precedent that's hugely important. Meanwhile, he actually is facing a very long sentence in prison based on his conviction that was upheld, despite the Carpenter ruling in the Supreme Court. So given how complicated this picture is, what are the main things that private citizens need to keep in mind as they think about their data security?

NATE:
I think one, it's important that we're electing representatives in Congress and state legislatures and really at the local level, who are thinking hard about protecting our privacy. You know this is not just something the courts and U.S. Congress can deal with: it's something that we can urge our local legislators to deal with. The ACLU has been working with a big coalition of groups around the country, for example, to pass local ordinances requiring police departments to disclose the surveillance technologies they use and their policies for how they're going to protect people's privacy and civil rights and civil liberties when they use them, and then giving city councils an opportunity to say “no” if they think that privacy is too much at risk for any one of these types of technology.

[00:26:14] Similarly, consumer privacy legislation is starting to move at the state level. It's critical. Congress may take it up soon too, and we should make sure that our representatives know this is a priority for us. To the extent that people can use their own technology in ways that protect their privacy, that can be important, too: engage location privacy settings on your smartphone, think about using privacy protective programs, virtual private networks, for example, when you're browsing the internet. It's not always the simplest thing, it can be a pain, but if you're concerned about your data, there are all sorts of things you can do. And there are lots of sources online that will explain that. And then supporting organizations like the ACLU and many of our peers that are fighting this out in the courts, too, trying to get systemic understandings of how the Fourth Amendment, and other similar protections, apply to us, to put the brakes on some of the worst abuses in the digital age.

EMERSON:
Well, Nate, I remember when you won the Carpenter case, I encouraged you to retire and go on a speaking tour. But I guess maybe we'll have you back in when you win your next landmark Supreme Court case.

NATE:
Fingers crossed.

EMERSON:
Thanks very much for joining us.

NATE:
Thank you.

EMERSON:
Thanks very much for listening. If you enjoyed this conversation, please be sure to subscribe to At Liberty wherever you get your podcasts and rate and review the show. We really appreciate the feedback.

‘Til next week, peace.

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