On Thursday, the Supreme Court will meet privately to discuss the controversial privacy question of whether the authorities need a court warrant to force mobile phone companies to divulge their customers’ cell site data. This data shows where you were (according to a cell tower) and when you made a call. This information can paint a canvas of one’s whereabouts, yet it’s not constitutionally protected material because it’s viewed as an ordinary business record held by the telcos. Courts have largely interpreted this to mean that the authorities can get the data without probable-cause court warrants.
There are five cases on the high court’s conference list in which cell-site data, obtained without a probable-cause warrant from a judge, was instrumental for the authorities to prosecute for armed robbery, drug running, and illegal possession of weapons. The defendants are asking the court to revisit the so-called third-party doctrine—a legal theory that allows authorities to obtain private information on people if that information is considered a normal business record voluntarily given to and held by a third party. In this case, the data is deemed a business record of the mobile phone companies, which are required to disclose it as part of government investigations.
This third-party doctrine dates to a 1979 Supreme Court case called Smith v. Maryland. That case set the legal framework behind the government’s once-secret phone metadata spying program disclosed by Edward Snowden. To that backdrop, the defendants in the five cases want the justices to answer the question, once and for all, on whether the third-party doctrine should apply to this Digital Age method of warrantless tracking. The high court has remained relatively silent on the issue.