August 24, 2018

“Seismic Shifts in Digital Technology”

“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 . . .