Apple and Other Companies File Brief Arguing Against 'Rigid Analog-Era' Fourth Amendment Rules

[MacRumors]

Apple, Twitter, Snap, Facebook, Microsoft, and a collection of other technology companies have filed a legal brief this week, aimed at the Fourth Amendment and its "rigid analog-era" protections that lag behind protecting users in the modern age (via Reuters).

The brief was filed in regards to the case Carpenter v. United States, which is a Supreme Court case focusing on the warrantless search and seizure of historical smartphone records, and whether or not such data collection by the government is prohibited by the Fourth Amendment's protection against unreasonable search and seizures.

Carpenter v. United States specifically ties to smartphone data held by a third party -- or any company that has access and can store personal user data -- and includes information revealing the "location and movements" of the user over 127 days.

With the new filing, which is in support of neither party, the companies state that customers should not be "forced to relinquish Fourth Amendment protections" against intrusion by the government, simply because they choose to use modern technology.

"To resolve this case, the Court should forgo reliance on outmoded rules that make little sense when applied in the digital context. In particular, the third-party doctrine and the content/non-content distinction should not operate to categorically foreclose Fourth Amendment protection; instead, Fourth Amendment law should favor a more flexible approach that assess reasonable expectations of privacy in light of new and evolving technologies and the highly sensitive data they implicate."

Other companies included in the brief included Airbnb, Google, and Dropbox. The case in question dates back to 2011, when Timothy Carpenter was convicted on robbery charges after investigators uncovered smartphone data with his past location information without a warrant. The Supreme Court agreed to review the case in June 2017, and it's now on the Court's term docket for October 2017.

Note: Due to the political nature of the discussion regarding this topic, the discussion thread is located in our Politics, Religion, Social Issues forum. All forum members and site visitors are welcome to read and follow the thread, but posting is limited to forum members with at least 100 posts.

Article Link: Apple and Other Companies File Brief Arguing Against 'Rigid Analog-Era' Fourth Amendment Rules

 

[IJ Reilly]

and whether or not such data collection by the government is violated by the Fourth Amendment's protection against unreasonable search and seizures.

I think the word you were seeking here is "prohibited."

 

[needfx]

on a happier note, I thought the sprinkler on the left was a smudge on my screen

 

[earthTOmitchel]

I think the word you were seeking here is "prohibited."

Ah you're right, thanks.

 

[AZ63]

"With the new filing, which is in support of neither party, the companies state that customers should not be "forced to relinquish Fourth Amendment protections" against intrusion by the government, simply because they choose to use modern technology."
To me it appears the filing, while not in support of Carpenter, certainly is against the government's claim to use the data. By weakening the government's claim, they are strengthening Carpenter's case.
It seems to me that these companies could support their filing by NOT STORING USER DATA. Yes, some data needs to be stored by companies for the purpose of billing but the tracking of people certainly seems to me as something that these companies don't need to keep on their servers.
One might contend that these companies are saying it is okay for them to keep the public's data for the purpose of generating revenue for themselves but not for the public's safety at large.

 

[now i see it]

If you don't want to be tracked, don't use a freaking tracking device...aka iPhone/android. Duh.

Everyone (by now) should realize that these things are spying devices. Use accordingly.

 

[HEK]

If you don't want to be tracked, don't use a freaking tracking device...aka iPhone/android. Duh.

Everyone (by now) should realize that these things are spying devices. Use accordingly.

Go back 20 years in time:
Imagine if government had come to you 20 years ago and said they want you to carry a tracking/spying tool that would report everything you do, say, text, mail. And they want you to purchase it with your own money and get new one every year or two. What would you have told the government?

Back to present time:
Well guess what, you said yes, gladly, where do I sign up.

Think about it. Privacy, liberty, freedom, are eroded in small incremental bits from within. And always to keep you safe from latest boogy man. Oh my god the terrorists are coming save me.

And they call patriots like Snowden, criminals.

 

[antonis]

If there are data stored in companies' servers, they will be accessed by governments, openly or secretly (and even illegally, if they have to, as we have already seen). If companies really wanted to do something about it instead of giving a show to the public regarding how much they care, they could find a workaround on their own.

 

[jdillings]

If these companies were really against the use of this information, they wouldn't collect the information in the first place and would respect their users' privacy.

 

[thisisnotmyname]

"With the new filing, which is in support of neither party, the companies state that customers should not be "forced to relinquish Fourth Amendment protections" against intrusion by the government, simply because they choose to use modern technology."
To me it appears the filing, while not in support of Carpenter, certainly is against the government's claim to use the data. By weakening the government's claim, they are strengthening Carpenter's case.
It seems to me that these companies could support their filing by NOT STORING USER DATA. Yes, some data needs to be stored by companies for the purpose of billing but the tracking of people certainly seems to me as something that these companies don't need to keep on their servers.
One might contend that these companies are saying it is okay for them to keep the public's data for the purpose of generating revenue for themselves but not for the public's safety at large.

It would certainly be nice though if we all didn't have to avoid any cloud storage and computing just to maintain our constitutional rights. Encryption of which only I hold the key gives us some technological protection against overreach but then I can't take advantage of processing that may require a third party to have limited access.

 

[ApfelKuchen]

If these companies were really against the use of this information, they wouldn't collect the information in the first place and would respect their users' privacy.

Information often has to be retained. From the consumer's standpoint, they want some sort of basis for the bill they receive. "We swear you made $125 worth of calls last month, but we can't tell you what they were" doesn't work very well. You can't be sure today's unlimited calling plans wouldn't return to time-and-distance, if it suited phone company interests. Fraud is much easier when there's no evidence left behind. Billing records need to be retained for tax purposes, and to satisfy regulatory agencies. And yes, investigative/surveillance agencies want access to the info when desired. If they must obtain a warrant before they can obtain phone records, they expect those records to be there when they produce the warrant. If they can obtain the records on demand... the law will still require records retention.

So, the companies may not have a choice as to whether to retain the records. What the companies want today addresses that last part - whether a simple government demand is all that's needed to get those records, or whether there are constitutional protections in place.

 

[CarpalMac]

Go back 20 years in time:
Imagine if government had come to you 20 years ago and said they want you to carry a tracking/spying tool that would report everything you do, say, text, mail. And they want you to purchase it with your own money and get new one every year or two. What would you have told the government?

Extend your point to include paying them money (through taxes e.g. sales tax) so they can do it!

 

[Nunyabinez]

The problem is that trying to compare digital concepts to analog concepts can be very complicated.

For example, I saw you walk into the store on Thursday and commit a crime. I can provide the police with my testimony and if I took a picture while it happened I can give that to them. All legal.

Instead your phone provider was collecting GPS data on your movements. Same information, but provided from a digital source. They are arguing, that you had an expectation that they wouldn't share that information.

These kinds of issues have to be resolved, because on the one hand, it is just information from a third party about your whereabouts, so it is the same. On the other, you can't reasonably expect that a stranger won't tell someone what they saw, but you do expect your provider not to share it.

I actually am very intrigued with the conundrums that come up when things in the digital world are the same as things in the real world, only different .

 

[DoctorTech]

The world has changed. The government once had 2 big limitations to spying on the general public. The cost of the technology and the ability to store and search through records to find information. In theory, 30 years ago if a person was a suspect, the police could have a group of plain clothes detectives follow that person around all day to see where they went and who they talked to. Obviously, this would be incredibly expensive so it was relatively rare that they would conduct such an operation (i.e. high level organized crime figures). The expense of such a surveillance operation, or the expense of storing thousands of video tapes from public security cameras created a certain automatic level of protection for the privacy of most people.

Today, technology has removed those cost and storage/search obstacles so anyone who is a "potential suspect" (i.e. absolutely everyone) can have their privacy routinely violated.

 

[AZ63]

It would certainly be nice though if we all didn't have to avoid any cloud storage and computing just to maintain our constitutional rights. Encryption of which only I hold the key gives us some technological protection against overreach but then I can't take advantage of processing that may require a third party to have limited access.

I would just say that perhaps this data could be kept in a secure enclave like Apple does with the finger print information. It is kept on our phone and we release it how and when we want. That way the government wouldn't be interested in what's on servers because it would be of little or no use to them.

 

[gnasher729]

I would just say that perhaps this data could be kept in a secure enclave like Apple does with the finger print information. It is kept on our phone and we release it how and when we want. That way the government wouldn't be interested in what's on servers because it would be of little or no use to them.

As far as the Secure Enclave is concerned, no information leaves it. Ever. That's the whole point. A chip that is incapable of giving any information to the outside.

 

[Carnegie]

The third-party doctrine needs to be revisited and either thrown out altogether or have its applicability limited significantly, preferably the former. It follows from a logical leap which is mistaken.

That isn't going to happen, of course. The best we might hope for is the kind of more nuanced consideration which this amicus brief argues for.

 

[Rocketman]

If these companies were really against the use of this information, they wouldn't collect the information in the first place and would respect their users' privacy.

They are trying to make it practical to store your electronic history in the cloud so data loss ends from magnetic media failure or loss.

 

[Gutwrench]

It will be interesting if and how SCOTUS resolves this. At the moment there's no reasonable expectation of privacy over stored vector data...which is the question. While a magistrate ordered the service provider to disclose the information, the affidavit under the SCA does not need to be sworn or provide proof of probable.

 

[AZ63]

As far as the Secure Enclave is concerned, no information leaves it. Ever. That's the whole point. A chip that is incapable of giving any information to the outside.

So data goes in. Then the chip gives the okay to release credit card/payment info stored in the phone when prompted by the user.
Got it. Thanks. Seems like that could work in other areas.

 

[CarlJ]

I would just say that perhaps this data could be kept in a secure enclave like Apple does with the finger print information. It is kept on our phone and we release it how and when we want. That way the government wouldn't be interested in what's on servers because it would be of little or no use to them.

Information about the remote end of a network connection or phone call can't "stay only on your phone", because the network, outside of your phone, had to connect your phone to the remote end. Your phone can't say, "I want to make a call to a party I refuse to specify". The information (metadata) about which phone made a call to which other phone is normally retained for a limited time for diagnostic and billing purposes.

If the government wants access to that metadata, per the 4th amendment, they should - no, must - be required to go to a judge and show sufficient cause to get a warrant (and not some secret FISA court or NSL-rather-than-a-warrant - this is how police states start).

 

[Gutwrench]

If the government wants access to that metadata, per the 4th amendment, they should - no, must - be required to go to a judge and show sufficient cause to get a warrant...

They do go to a magistrate but unlike a warrant the request under SCA need not be sworn and the issuance does not require probable cause.