Does location privacy exist anymore?

The U.S. Supreme Court will decide whether warrantless seizure of a person's cell network usage records violates the Constitution. Of course it violates the Constitution --- as the "third-party doctrine" has violated the Constitution's prohibition on warrantless seizure of a person's private communications. The sole reason why the attorney general claims we have no "reasonable expectation of privacy" in this case, is that the third-party doctrine causes that effect!

The policy remains�unconstitutional, because�warrantless�seizure as it pertains to private communications is an�unreasonable�government action. At the time of the�Fourth Amendment's adoption, in the 1790s, people communicated orally in-person or in writing via letters, all of which were obviously private unless they were issued to the public. A hundred years later, in the 1890s, when the telephone recorder became a thing, courts prohibited warrantless wiretaps for that same reason: unless the phone calls were made to the public, they were obviously a private communication.

Constitutionality of warrantless wiretaps

Consider Associate Justice Louis Brandeis's opinion in the 1920s, from�Olmstead v. United States. He acknowledged the telephone as "a public service furnished by its authority," and saw no reason why a telephone call's content should be less protected than the contents of mail. Moreover, he emphasized its greater importance in value to the private citizen:

"the evil incident to invasion of the privacy of the telephone is far greater�than that involved in tampering with the mails."

Louis Brandeis, Supreme Court Associate Justice, in opinion of�Olmstead v. United States

Forty years later, through its decision of�Katz v. United States, in 1968, the�court essentially affirmed Brandeis' opinion:

"One who occupies [a telephone booth], shuts the door behind him, and pays the toll that permits him to place a call is�surely entitled to assume that the words he utters into the mouthpiece will not be broadcast to the world."

Potter Stewart, Supreme Court Justice, in opinion of�Katz v. United States

"Reasonable expectation of privacy"

In Katz, the court, via Justice John Harlan's opinion, established a limit to the Fourth Amendment's protections. This is where we become acquainted with the definition of a "reasonable expectation of privacy."

"(a) that an enclosed telephone booth is an area where, like a home, and unlike a field,�a person has a constitutionally protected reasonable expectation of privacy; ..."

John Marshall Harlan II, Supreme Court Justice, in opinion of�Katz v. United States

In�the case before the Supreme Court today, the government's argument hinges on the assertion that the defendant, Timothy Carpenter, was engaged in a communication for which he had no reasonable expectation of privacy. Imagine how corrosive such an argument can be when it can be applied to the act of merely�turning on�your phone (which is what the government is arguing for)!

The portability of a cell phone --- the variability of the origin of a placed call --- is not a proper excuse for a wireless wiretap. It's not even a proper excuse for a warranted one! Yet that is exactly what the attorney general argues against when he defends the government's actions upon the "third-party doctrine."

The "third-party doctrine"

In a nutshell, via Wikipedia's�article:

"The�third-party doctrine�is a�United States legal theory�that holds that�people who voluntarily give information to third parties---such as banks, phone companies,�internet service providers�(ISPs), and e-mail servers---have "no reasonable expectation of privacy."�A lack of privacy protection allows the United States government to obtain information from third parties without a legal warrant and without otherwise complying with the�Fourth Amendment prohibition..."

Wikipedia article on the�third-party doctrine

So, the first question one asks should be, "do I�voluntarily�give my location information to the cell network providers when I use my phone?"

Do you have a capability to prevent the providers from knowing which of their cell network towers your phone is connecting to? Answer:�no, you do not have that choice.

Would a person using a wired telephone 50 years ago have had the capability to prevent the phone network operators from knowing the location of the property where their line was installed?�Of course not.

And so that begs the question:�Why�has the law been treating wireless communication privacy so differently?

How I see it, there's no legitimate excuse for making an end-run around the Fourth Amendment that wouldn't also apply to pre-cellphone era communications technology. Nothing prohibits law enforcement agencies from seeking warrants in accordance with the Fourth Amendment's prescription to seize a private communication.

Your location privacy vs.�[insert reason here]

The question before the court is essentially: When (if ever) should law enforcement agencies have permission to warrantless-ly know the location of a phone?

That's a bigger question than "are they allowed to tap my phone calls without a warrant?" Yet, most media's coverage is missing this point..

Fortunately, the folks�writing for Wired�are�on point:

The justices will have to confront the fact that absent a ruling that requires police departments to obtain warrants to retrieve cell phone location data, cell phones will render our lives involuntarily transparent.\ At its core, the�Carpenter�case is about whether Americans' rights to privacy should turn on whether they "voluntarily" choose to have a cell phone.

WIRED

I'll be watching the Supreme Court's developments about this case.