Raided, Traded, Weaponized and Commoditized – Your location data
Privacy Plus+
Privacy, Technology and Perspective
Raided, Traded, Weaponized and Commoditized – Your location data. This week, we are considering ditching our smartphones.
Let’s start by highlight a terrific interactive article published as part of the New York Times Privacy Project regarding the exploitation of location data:
Twelve Million Phones, One Dataset, Zero Privacy by Stuart A. Thompson and Charlie Warzel, available here:
https://www.nytimes.com/interactive/2019/12/19/opinion/location-tracking-cell-phone.html
We think that this article is a must-read. It sheds light not only on privacy concerns, but on the multi-billion dollar advertising industry that is powered by location data.
The Supreme Court has recognized that tracking the “location of a cell phone…achieves near perfect surveillance, as if it had attached an ankle monitor to the phone's user.” In Carpenter v. United States, the Court therefore “decline[d] to grant the state unrestricted access to a wireless carrier's database of physical location information,” concluding that the Government must generally obtain a warrant supported by probable cause before acquiring such records. A link to that decision follows:
https://www.supremecourt.gov/opinions/17pdf/16-402_new_o75q.pdf
Despite the presence of the privacy interests clearly protected by Fourth Amendment, the use of location data by commercial entities remains unregulated.
The Wall Street Journal recently reported that the Government has effectively side-stepped the Fourth Amendment protections recognized in Carpenter, by buying location data from commercial databases. Click on the following link to read the WSJ article to read about how the Department of Homeland Security has been purchasing cellphone location data to track activity near the US-Mexico border:
As Justice Brandeis explained in his famous dissent in Olmstead v. United States, 277 U.S. 438, 473-474 (1928), a "[s]ubtler and more far-reaching means of invading privacy ha[s] become available to the Government." In effect, there is now a commercialized surveillance state that inhabited by everyone with a cell phone or a smartphone.
We don’t think that having a cell phone/smartphone should deprive anyone of protection under the Fourth Amendment, and we wonder when Congress will at least hold hearings on the exploitation of location data both by commercial entities and by the Government.
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Hosch & Morris, PLLC is a Dallas-based boutique law firm dedicated to data protection, privacy, the Internet and technology. Open the Future℠.