In 2015 Marcus Zanders, an Ohio man, was convicted of robbing two southeastern Indiana liquor stores. Part of the evidence against him was location data showing where he had been recently — gotten by the sheriff's office from his cell phone company without a search warrant.
Zanders' attorneys want the Supreme Court to take his case, along with that of another robber who committed his crimes in Michigan that the court has already agreed to hear. The question is whether authorities are violating a defendant's rights to be protected against unreasonable search and seizure if they get such location data without getting a search warrant based on reasonable suspicion.
It's an important Fourth Amendment question with implications for all of us.
At issue is the “third-party doctrine,” a legal principle holding that information voluntarily shared with someone else — for example deposit and withdrawal information with your bank, or the numbers you dial on the phone with your phone company — isn't protected by the Fourth Amendment because you can't expect that third party to keep the information secret.
The Electronic Frontier Foundation and other privacy advocates argue that the doctrine is out of date and ill-suited to the digital age. We use our portable, digital technology for so much today, most of it requiring us to give information to a third party. Does that mean our whole lives must be an open book?
As Justice Sonia Sotomayor noted in her concurring opinion in United States v. Jones, location information can provide the government with a “precise, comprehensive record of a person's public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations.”
Or, as the lower court in Jones put it, “[a] person who knows all of another's travels can deduce whether he is a weekly church goer, a heavy drinker, a regular at the gym, an unfaithful husband, an outpatient receiving medical treatment, an associate of particular individuals or political groups — and not just one such fact about a person, but all such facts.”
Authorities seeking location data tend not to ask for specific dates based on known events. They seek “dumps” of data covering weeks or even months. Do you want your life that open to authorities? As privacy becomes harder to achieve — indeed, as the very concept keeps eroding — that's something we'd better all think about.