Chatrie v. United States was decided on July 30th. The corporate media barely mentioned it, but the ruling firmly recognized that electronic data is constitutionally protected private information. This truth stopped cold a law enforcement action defended by the Trump Administration, that collected the information of private citizens held by a major U.S.-based business.
This decision may also drastically change the data collection industry – a business activity in which private companies often sell the information it holds on U.S. citizens and others to the highest bidder. Many times, that bidder is the U.S. government.
Chatrie v. United States may make such an activity a thing of the past.
Today, the American Spark is quoting the second part of the Supreme Court decision, which explains why Trump’s argument for data collection simply makes no legal sense.
On Saturday, the Spark printed the first part of that decision, which pointed out why the electronic data of U.S. citizens and others in the country are forms of information protected by the 4th Amendment. That amendment “protects individuals’ reasonable expectations of privacy.”
But the decision was not unanimous. Judges Alito, Thomas and Barrett argued against the decision.
“(3) The Government’s argument that accessing only a short amount of cell-phone location information does not count as a Fourth Amendment search fails. “[E]ven short-term monitoring” can provide “a wealth of detail about [a person’s] familial, political, professional, religious, and sexual associations,” […] and this Court has never understood Fourth Amendment protections as kicking in only once an intrusion ‘goes too far.” […]
“Where the Fourth Amendment applies, it applies regardless of ‘the quality or quantity of information’ the government obtains. […] That approach makes all the more sense when, as with Location History, law enforcement officials can select the time-limited set of materials they want from an all-encompassing database. […]
“(4) The Government argues that the so-called third-party doctrine precludes Chatrie from invoking the Fourth Amendment’s protections.The idea is that in ‘authoriz[ing] Google to collect, retain, and use’ his location information, Chatrie lost his legitimate expectation of privacy, and therefore his right to complain of a search.”
“But Carpenter refused to apply the third-party doctrine to CSLI, and no good reason exists to reach a different result for Location History. In Carpenter, the Court rejected application of the third-party doctrine to CSLI because such information is ‘qualitatively different’ from ‘telephone numbers and bank records’ [as] it is incomparably ‘revealing’ and is ‘not truly “shared” as one normally understands the term’ given that cell phones are ‘indispensable to participation in modern society. ’ ”
“Both differentiating features apply equally or better to Location History, which is even more ‘revealing’ than CSLI and is ‘not truly shared’ in the normal sense of wanting a third party to see or use it.”
“The exposure of that information to Google is merely what happens when a user avails himself of one of the services on his cell phone. The Government’s argument that generating Location History, unlike producing CSLI, is a voluntary choice is meritless. That argument ignores how and why Google users turn on Location History: Google repeatedly prompts users to turn on the service, often warning that devices will not ‘work correctly’ otherwise […] while not disclosing in that prompt how frequently users’ location information would be recorded how precise it would be, or how it might be given to the government.
“More generally, an app-by-app, feature-by-feature method of granting Fourth Amendment protection misapprehends the nature of modern cell-phone use, where nearly everything requires some kind of ‘affirmative act’ beyond ‘powering up’ a given app or service.
“The Government wishes to disconnect the activities people do on their cell phones from the mere act of carrying a turned-on cell phone (the thing that generates CSLI), with only the latter receiving assured Fourth Amendment protection. But the point of carrying smartphones is to use what is on them—as Carpenter said, to use the apps and ‘services they provide.’ ”
“Accordingly, a cell-phone user is not to be viewed as sharing private information with third parties—which then can be freely passed on to the government—just by doing the ordinary things cell-phone users do.”
