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“Seismic Shifts in Digital Technology”

On June 22nd, the Supreme Court cited “seismic shifts in digital technology” as part of the justification for shifting away from the third-party doctrine it outlined over four decades ago.

Quick lessons in history and current events are in order.

  • Third Party Doctrine is a legal theory which says: If a person voluntarily gives information to third parties (banks, phone companies, ISPs, etc), that person has “no reasonable expectation of privacy.”   This doctrine has been solidified throughout a string of Supreme Court cases going back over 40 years.
  • Third Party Doctrine enabled our government to obtain some information about us from third parties without a search warrant or probable cause (both of which would otherwise be required, by the fourth amendment).
  • Carpenter v. United States, decided in June of this year, has reversed this doctrine.
  • Specifically at issue: May the government access historical cellphone location records without probable cause and a search warrant?   The court said, “no.” 
  • What is not yet clear is: How does this affect the sharing or selling of real-time customer location data by mobile providers?  People other than the government are interested in where exactly you and I are currently located.  Are our mobile providers allowed to sell them that information?
  • News flash: Our mobile providers have already been selling this location information.
  • On May 17th, KrebsOnSecurity broke this scandal: a website with easy-access real-time location data for almost any phone number.    That website has since been shut down, but what happens next?   This story is not yet finished . . .