The Supreme Court ruled, at the end of June, that seizing cell-site location information—data that tracks cell phone users’ movements—constitutes a search under the Fourth Amendment. Speaking for a 5-4 majority in Carpenter v. United States, Chief Justice Roberts addressed questions surrounding law enforcement’s warrantless seizure of over 12,000 cell site location points pinged by the defendant’s phone, which allowed for nearly minute-by-minute tracking of his past movements. At the time, police needed only to prove that the data was reasonably relevant to their investigations. In its opinion the Court will now require that a warrant be obtained with a showing of probable cause – a higher burden of proof than previously required –, and an individualized suspicion that the data’s owner committed a crime in order to access cell-site records.
A challenge to the use of a cy pres charitable donations to settle privacy claims against Google will be heard by the Supreme Court. In Frank v. Gaos, petitioners seek reversal of lower court decisions rejecting their objection to an $8.5 million settlement of claims arising from Google’s transmission of users’ search terms to third-party websites. Because the proposed settlement amount could not feasibly be distributed to the estimated 129 million class members, the settlement called for Google to pay the settlement proceeds, less class counsel fees, to certain privacy-related charities. The trial court awarded 25% of the settlement — or $2.125 million – to class counsel; the balance went to the charities. The petitioner’s objections to the settlement were overruled.
Written by Paul E. Pelletier
The Chinese Year of the Dragon started with a bang as the Supreme Court issued a much anticipated ruling in this Fourth Amendment case that was neither brave nor innovative. In United States v. Antoine Jones the Court chose to affirm the district and circuit courts’ Fourth Amendment ruling on extremely narrow grounds. Left for another day is the question of the durational limits of covert electronic law enforcement monitoring of a criminal suspect’s public movements. Fourth Amendment connoisseurs who were expecting a blockbuster decision defining the breadth of a person’s privacy rights in the “digital age” must be disappointed.
Written by Dianne Bourque
On Tuesday, the US Supreme Court heard arguments (transcripts here) about whether or not the Vermont data mining law violates free speech by preventing pharmaceutical manufacturers and their sales people from obtaining data on physician prescription habits. Vermont currently bans the sale, transmission, and use of prescriber-specific data for marketing purposes unless physicians have provided their permission. New Hampshire and Maine have similar laws.
Typically, data mining companies buy physician prescription information from pharmacies. The information does not include patient information but does permit drug representatives to obtain detailed knowledge about a physician’s prescribing habits in order to tailor sales pitches, identify physicians who do not use a product and monitor changes in prescribing habits. Several data mining companies as well as the Pharmaceutical research and Manufacturers of America (PhRMA) argued that the law interfered with the right to commercial speech, which is protected by the first amendment. They also argued that the law jeopardizes patient safety by prohibiting drug reps from educating physicians about products. The state of Vermont argued that its law gives physicians control over the use of their prescribing histories and control over marketing directed at them. They also argued that the goal of pharmaceutical company drug mining is sales – not physician education. Vermont’s argument was supported by Attorneys General for 13 states , the United States (see link below), The New England Journal of Medicine, and the AARP, among others.
The Supreme Court is expected to decide the case later this year.
Related links after the jump
My colleague, Martha Zackin, has published a more extensive discussion of the issues before the U.S. Supreme Court in the Quan case —
Some additional information on yesterday’s post regarding the Supreme Court’s decision to hear the Quon case. The high Court agreed to hear some, but not all of the issues presented by the Ninth Circuit decision in the case.
The Court will consider whether a police sergeant assigned to a SWAT team had a reasonable expectation of privacy under the Fourth Amendment in text messages transmitted on a department-issued pager and stored by an outside service provider even in the face of the City of Ontario’s “general practice” of non-monitoring of such communications. The Court denied review (known as “certiorari”) to questions of whether the surrender to the city in the first instance by Arch Wireless (the service provider) of those messages violated the Stored Communications Act.
messages transmitted on his SWAT pager, when the police department has an
informal policy of allowing some personal use of pagers?
• Did the Ninth Circuit contravene Fourth Amendment precedents and create
circuit conflict by analyzing whether the police department could have used
‘less intrusive methods’ of reviewing text messages transmitted by the SWAT
team member on his SWAT pager?
• Do individuals who send text messages to a SWAT team member’s SWAT pager
have a reasonable expectation that their messages will be free from review by
the recipient’s government employer?
Reuters reports that the U.S. Supreme Court this morning refused to hear an appeal requested by two companies that want a New Hampshire prescription privacy law overturned. According to the article, the high court rejected without comment the request of Verispan and IMS Health, who argued that a law prohibiting companies from using physicians’ prescribing records to boost drug sales violates their First Amendment rights to free speech. The Supreme Court’s refusal means a 1st U.S. Circuit Court of Appeals decision to uphold the law stands. Last week, the companies advisories.