Will the Supreme Court rely on a 1979 case (think 18,134 Internet years) for Internet/cellphone privacy in 2017?

27 November 2017 Internet, IT & e-Discovery Blog Blog
Authors: Peter Vogel

On November 29th the US Supreme Court will consider the case of US v. Carpenter where “police acquired the data from Carpenter’s wireless carriers without a warrant showing probable cause”  which led to Timothy Carpenter’s conviction that he was  “leading a gang of robbers” and the “prosecution produced cellphone-tower data that tracked the whereabouts of Carpenter’s cellphone for more than four months and placed him at or near the sites of a string of armed robberies.”

The Washington Post had an article written by Stephen Sachs on November 26, 2017 who was Maryland’s Attorney General from 1979 to 1987 entitled “The Supreme Court’s privacy precedent is outdated” who commented that in 1979 he “argued and won Smith v. Maryland when I was Maryland’s attorney general. I believe it was correctly decided. But I also believe it has long since outlived its suitability as precedent.” As Mr. Sachs pointed out, the 6th Circuit Court of Appeal relied on Smith v. Maryland in the Carpenter case.

Mr. Sachs supports a new legal construction of privacy in 2017 relying on Justice Sonia Sotomayor, in her concurring opinion in the 2012 case of US v. Jones which held:

….that the clandestine and warrantless attachment of a GPS tracking device to a defendant’s car was an unconstitutional search.

…the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties 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.

People disclose the phone numbers that they dial or text to their cellular providers; the URLs that they visit and the email addresses with which they correspond to their internet service providers; and the books, groceries and medications they purchase to online retailers.

It will be interesting to see how the Supreme Court rules in the US v. Carpenter.

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