“I don’t know how we would handle that,” said Baker, speaking on a panel at the American Bar Association’s annual conference on national security law in Washington, D.C., on Tuesday. The executive branch would suffer from “a huge amount of uncertainty and confusion while we are doing investigations.”
The debate over protection afforded to location information launched several years ago and is likely to make its way to the Supreme Court regardless of the new administration.
Several decades ago when law enforcement first began approaching the major telecoms for information about suspects, the law operated under a central theory known as the third party doctrine. According to this theory, data voluntarily given to a company can be handed over to law enforcement without a warrant, because users have “no reasonable expectation of privacy” once the companies have the data. Investigators have used this doctrine to obtain information about where people have been, who they’ve been talking to, and what websites they’ve been browsing.
“It’s the position of the U.S. government,” Baker said. “We’re exercising those authorities.”
While those authorities may have seemed simple when cell phones contained little more than contacts and billing information — that’s no longer the case. Phones are now constantly pinging cellphone towers — tracking location “every six minutes,” which provides “robust information about you, as good as if not better than the contents of communications,” argued Magistrate Judge James Orenstein, another member of the panel. Orenstein, who serves in the Eastern District of New York, made waves in February when he ruled against the FBI, which was attempting to compel Apple to decrypt information on a suspect’s phone.
Baker, on the other hand, suggested that “metadata” and preliminary data, like cell tower information, is vital for the early stages of investigations — helping the FBI decide where to devote its resources. Encryption is already creating roadblocks, he argued, and putting legal barricades in the way of getting information the bureau can still access would be disastrous.
The issue of whether or not requests made to cellphone companies for location information over long periods of time is considered a search under the Fourth Amendment has been making its way through the lower courts for years. Circuit courts have overwhelmingly ruled in favor of the third party doctrine.
Privacy advocates argue this policy doesn’t reflect the way people live their lives in the digital age, with cellphones constantly broadcasting their location to make calls, send texts, log onto social media. On the other hand, some experts like Orin Kerr, a law professor at George Washington University, has held that courts are obligated to continue to apply the third party doctrine as written to decisions — leaving the final ruling to the Supreme Court.
However, the panelists agreed on one thing: the country will be stuck with this issue for quite some time, particularly with a new administration. Miguel Estrada, a private attorney for Gibson Dunn, joked during the panel that there’s already plenty of uncertainty now that Donald Trump is the president-elect, triggering laughter from the crowd of national security legal professions in the audience.
When it comes questions on how the law is impacted by changes in technology, “right now, we’re writing the answers,” Orenstein concluded.
Author: Jenna McLaughlin