Cell Phone Owners Have a Reasonable Expectation of Privacy in Their Historical Location Data

Carpenter v. United States, recently decided by the U.S. Supreme Court, is the first High Court decision to address “the ability to chronicle a person’s past movements through the record of his cell phone signals.”[i] The case arose when the federal government relied on a subpoena issued under the Stored Communications Act to obtain cell-site location information (CSLI) from Carpenter’s cell phone providers. The location data provided by the CSLI records was central to convicting Carpenter of robbery. Carpenter unsuccessfully argued both at trial and on appeal that the federal government was required to obtain a warrant under the Fourth Amendment to seize the CSLI records.

The High Court held that “an individual maintains a legitimate expectation of privacy in the record of his physical movements as captured through CSLI,”[ii] that the government’s acquisition of Carpenter’s CSLI records was a search and that “the Government must generally obtain a warrant supported by probable cause before acquiring such records.”[iii] Specifically addressing the decision’s application to third parties, the Court stated: “We hold only that a warrant is required in the rare case where the suspect has a legitimate privacy interest in records held by a third party.”[iv]

Although the Court indicated that the Carpenter decision is narrow, it is a notable decision in at least three ways:

1) it affirms that the Fourth Amendment protects privacy rights connected to people, not just privacy rights connected to property;

2) it rejects a mechanical application of the third-party doctrine; and

3) it recognizes that law enforcement now has the potential to access years of an individual’s location information that was collected before law enforcement even knew that it wanted to follow that individual.

Keep reading for more details on each of these intriguing topics. Continue reading “Cell Phone Owners Have a Reasonable Expectation of Privacy in Their Historical Location Data”

Heads Up, U.S. Businesses, Here Comes the GDPR!

In my first blog post, I briefly discussed the European Union’s (EU) General Data Protection Regulation (GDPR). We’ll take a closer look at the GDPR now. Specifically, what impact can the GDPR have on U.S. businesses?

The GDPR is broad enough to impact even small U.S. businesses that have customers in, or market their products or services to, EU residents. Violation of the GDPR carries with it hefty fines which are intended to be “effective, proportionate and dissuasive.” (Article 83). The EU is serious about enforcing the GDPR! It’s important for U.S. business owners to learn about the GDPR and become aware of the risks for failing to comply with the GDPR.

The GDPR embodies the philosophy of data stewardship. Businesses are caretakers of other people’s data and have an obligation to handle the data responsibly. U.S. businesses that embrace the data stewardship philosophy, going beyond doing the minimum to comply with the GDPR, have the opportunity to turn their GDPR efforts into a market place differentiator that matters to consumers.

Continue reading “Heads Up, U.S. Businesses, Here Comes the GDPR!”

What is Privacy?

Privacy is the theme of this blog. But what is privacy?

Each of us has an intuitive feeling about what privacy is. We know when someone has invaded our privacy. Maybe someone entered your room without knocking and receiving your permission to enter. That’s a physical invasion of your privacy. Perhaps someone you know obtained personal facts about you behind your back, such as how much money you made last year, and posted that information online without your knowledge and consent. That’s an invasion of your right to protect your personal information. In either case, you don’t like it, but what can you do about it?

An invasion of privacy can cause us to experience many emotions, including anger and resentment. It’s easy to experience an invasion of privacy as a feeling, but it can be difficult to put that experience into words. The ability to describe what you don’t like about an invasion of your privacy is likely essential to putting a stop to the invasive behavior.  The case of Prince Albert v. Strange illustrates an invasion of privacy and what Prince Albert did about it.

Continue reading “What is Privacy?”