Fourth Amendment Under Fire: Why We’re Rooting For a Thief

By most measures, Timothy Carpenter is a bad man. He’s a thief, a liar and a scoundrel.

He’s not our kind of guy.

Because of the crimes he committed, it’s nearly certain that he’ll spend the rest of his life in prison – a sentence he deserves.

Even so, fans of Liberty across this great land are cheering for the man and his court case this week.

It didn’t make major news, but lawyers for the convicted thief stood in front of the Supreme Court yesterday. What they argued wasn’t some cheap plan to keep their man out of jail – he’s in for good no matter the outcome of the case.

No, their fight is one that affects all of us.

If you own a cellphone and value your privacy, docket number 16-402 is a case you must pay attention to.

It affects your freedom, your money and even your relationships.

Freedom Revisited

Here’s the rub.

If you own a cellphone, authorities can legally track every move you make.

The process is quite simple…

You see, as you go about your daily business, your phone connects with multiple cell towers – even if you’re not using it. As it pings one tower after another, it leaves a digital trail that’s easy to track.

Authorities are big fans of the technology. It makes their job much easier. If the bad guy has a phone in his pocket, they can use his cellphone records to easily put him at the scene of the crime.

That’s what happened to Carpenter. With just a few phone calls, the FBI was able to show its suspect was near each of the robberies it was investigating.

Essentially, the thief’s cellphone snitched on him.

And here’s the crazy part. The government didn’t need a warrant to get Carpenter’s location data. They didn’t need to show probable cause. And they certainly didn’t need the suspect’s permission.

Nope, they merely went to his cellphone provider and demanded the records.

While they were snooping, they could have just as easily looked at your data, your neighbor’s data… anybody’s data.

There’s no limit… no boundaries.

That’s because America’s laws have not kept pace with her technology.

The Liberty Loophole

The problem lies in something called the “third-party doctrine.”

Essentially, it says that personal information that’s in the hands of a third party – like a cellphone company – is not covered by the Fourth Amendment (that’s the one, we hope we don’t have to remind you, that protects us from unnecessary search and seizure).

Forty years ago – roughly the last time the doctrine made its way to the nation’s top court – the doctrine held its protective umbrella over far fewer entities. It merely covered things like bank account data and the phone numbers a person dialed.

But that’s all changed in recent years.

Now our digital records are deep, detailed and highly individualized.

Within minutes, the government could know the average American’s daily routine, tastes, friends, location and even sleep habits.

The feds had all that data – 172 days’ worth – on Carpenter and were eager to use it against him.

We’re glad he’s in jail. He deserves it. And we’re glad to know that even if his lawyers made a court-swaying argument yesterday, the man will remain locked up.

But we can’t help but scratch our head and ponder where the limits of this doctrine lie.

And we’re not the only one.

A federal appeals court had this to say of modern tracking technology and the government’s ability to use it to its full advantage:

A person who knows all of another’s travels can deduce whether he is a weekly church goer, a heavy drinker, a regular at the gym, an unfaithful husband, an outpatient receiving medical treatment, an associate of particular individuals or political groups – and not just one such fact about a person, but all such facts. 

And that’s just the data on our phones.

Add in our search history, our buying activity and, now, our spending activity, and nearly everything we do is open to anybody who wants to look.

That’s what makes this week’s Supreme Court case so important.

None of the data above is currently protected by the Fourth Amendment. But if Carpenter’s lawyers have their way, that will change.

It’s quite rare we hope a thief, liar and scoundrel gets his way. But in this case, we’re rooting for the bad guy.

Our Liberty is at stake.

P.S. It’s not just our phone calls that the government wants to track. Washington also wants to track how and where you spend your money. And we suspect big news on that front on December 13. For my full presentation on the subject (which I think is Washington’s biggest power grab yet), click here.

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