Does The Fourth Amendment Protect User Data? Tech Companies Say Yes

A group of major technology firms and lawyers submitted filings to the Supreme Court Tuesday that argue in favor of extending the legal protections of the Fourth Amendment to data generated and recorded by apps and mobile devices.

The friend-of-the-court filing was submitted by companies including Apple, Google, Microsoft and others. The companies were joined in their filing by law professors and academics, technologists and researchers who also supported extending legal privacy protections for user data.

In the brief, tech firms argued that current laws “make little sense in the context of digital technologies" because they distinguish between “content” and “non-content.” Content, as the law defines, requires law enforcement get a warrant to pursue. Non-content does not require the same scrutiny.

According to the tech firms, non-content—which can include personally revealing information collected from the user by third-parties—shouldn’t be barred from Fouth Amendment protections. “This data can often be highly revealing of the intimate details of a user’s life,” the companies argued.

Joining the tech companies in filing briefs to the court were a number of law professors who submitted an amicus filing. The legal experts took aim at the third-party doctrine, a controversial statute established by the Stored Communications Act.

The statute—which has been used to justify the U.S. National Security Agency’s practice of collecting telephone communications metadata and was revealed by former NSA contractor and whistleblower Edward Snowden—argues that data collected by third parties, such as cell site data from an individual’s device held by telecommunications companies, are business records and can be disclosed without a warrant.

According to the lawyers, the third-party doctrine "cannot support future application of the Fourth Amendment." They may have an advocate on the court in this argument, as Associate Justice Sonia Sotomayor has previously argued the third-party doctrine is "ill-suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks."

Another brief filed Tuesday, signed onto by a number of academics and technology experts, follows suit of the brief from the legal experts. "The use of this information without adequate court supervision has the potential to profoundly unsettle legitimate expectations of privacy," the brief said.

The briefs were filed to the court in support of the defense of Timothy Carpenter, a Detroit man who was convicted on six counts of robbery after police acquired and searched through several months worth of location data collected by his mobile provider.

Law enforcement obtained 127 days worth of cell-site data that included 12,898 location points. The data required a court order but not a warrant to acquire. Carpenter has appealed the conviction, arguing that a warrant should be required to acquire the data used to convict him.

Earlier this month, the American Civil Liberties Union (ACLU) filed its opening brief for the case, in which it argued allowing law enforcement access to such personally identifiable information could have sweeping implications for an individual’s privacy.

“Because cell phone location records can reveal countless private details of our lives, police should only be able to access them by getting a warrant based on probable cause,” Nathan Freed Wessler, a staff attorney with the ACLU Speech, Privacy and Technology Project said in a statement.