Chief Justice Roberts outlined those stakes in his Carpenter ruling. “The retrospective quality of the data here gives police access to a category of information otherwise unknowable. In the past, attempts to reconstruct a person’s movements were limited by a dearth of records and the frailties of recollection. With access to [cellphone location data], the Government can now travel back in time to retrace a person’s whereabouts, subject only to the retention polices of the wireless carriers, which currently maintain records for up to five years. Critically, because location information is continually logged for all of the 400 million devices in the United States — not just those belonging to persons who might happen to come under investigation — this newfound tracking capacity runs against everyone.”
The courts are a ponderous and imperfect venue for protecting Fourth Amendment rights in an age of rapid technological advancement. Exhibit A is the notion that the Carpenter ruling applies only to location data captured by cellphone towers and not to location data streamed from smartphone apps, which can produce nearly identical troves of information.
For far, far too long, lawmakers have neglected their critical role in overseeing how these technologies are used. After all, concern about location tracking is bipartisan, as Republican and Democratic lawmakers told Times Opinion last year.
“I am deeply concerned by reports that the Trump administration has been secretly collecting cellphone data — without warrants — to track the location of millions of people across the United States to target individuals for deportation,” Representative Carolyn Maloney, who leads the Oversight and Reform Committee, told The Times. “Such Orwellian government surveillance threatens the privacy of every American. The federal government should not have the unfettered ability to track us in our homes, at work, at the doctor or at church. The Oversight Committee plans to fully investigate this issue to ensure that Americans’ privacy is protected.”
Surely, Congress has time to hold hearings about a matter of urgent concern to everyone who owns a smartphone or cares about the government using the most invasive corporate surveillance system ever devised against its own people.
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