Less than a month after the European Union instituted rules to protect the privacy of its citizens, the United States Supreme Court took an important step to protect Americans against unwarranted government intrusion in criminal investigations. Now it is time for another branch of government—the Congress—to act to protect our privacy the rest of the time.
Last month’s decision in Carpenter v. U.S. (16 U.S. 402) focused on the government’s access to private information. Justice Samuel Alito, in dissent, expanded the matter from privacy in criminal cases to talk about the privacy for the rest of us. “Some of the greatest threats to individual privacy,” Justice Alito warned, “may come from powerful private companies that collect and sometimes misuse vast quantities of data about the lives of ordinary Americans.”
As he warned of “some of the greatest threats to individual privacy,” Justice Alito also cautioned against relying on the court to update privacy policies for the rest of us. “If today’s decision encourages the public to think the court can protect them from this looming threat to their privacy, the decision will mislead as well as well as disrupt,” he wrote.
Unfortunately, this “looming threat” has been ignored by Congress. Thus far, the Congress’ only meaningful consideration of personal privacy was to reject it. Early in the Trump administration, the new Republican Congress repealed a Federal Communications Commission (FCC) regulation that required internet networks to provide privacy protections similar to the requirements for telephone companies. The assenting representatives and senators justified walking back network privacy on the grounds that networks and the services that use those networks need common privacy expectations. They then did nothing to create such policies.
In Europe, privacy is a guaranteed right of citizens, unlike in the U.S. where the word “privacy” never appears in the Constitution or Bill of Rights. In the 1965 Griswold v. Connecticut decision (381 U.S. 479), the Supreme Court found an individual right to privacy in the “penumbra” of other constitutional protections, particularly the Fourth Amendment protection against search and seizure. Since privacy is not an enumerated right in the Constitution, it falls to Congress and the courts to determine the scope of that “penumbra.”
The issue in the Carpenter case was the cellphone location information used to convict Mr. Carpenter. In the majority opinion, Chief Justice John Roberts analogized the location-tracking ability of a mobile phone to attaching a GPS device to a person. Such location information, he opined, provides “an intimate window into a person’s life, revealing not only his particular movements, but through them his ‘familial, political, professional, religious, and sexual associations.’”
The government argued that because Mr. Carpenter’s information was voluntarily provided to a third party—the mobile phone company—that he had no reasonable expectation to privacy. In that defense lies a conundrum of the digital age: information is necessary for services to function, but who protects the privacy of that information and prevents its misuse?
In a mobile network, cellular antennas track the user’s location information as they move between cells. Platforms such as Facebook or Google collect information respectively to create social networks or return relevant search results. However, networks or platforms too often use that information for other purposes, unilaterally deciding to store, sort and sell it to the highest bidder.
Chief Justice Roberts wrote of the “Detailed, encyclopedic, and effortlessly compiled” information collected by digital connections. The failure of Congress to create privacy rules doesn’t mean there are no rules—just that the rules have been created by those who profit from the sale of personal information rather than the representatives of the Americans whose privacy is being sold.
The Supreme Court has stepped up to protect the privacy rights of the accused. It is time the people’s representatives step up to protect the rights of the rest of us.