1 00:00:00,080 --> 00:00:03,160 Speaker 1: Privacy rights in the digital age. It's part of a 2 00:00:03,200 --> 00:00:05,800 Speaker 1: criminal case that the Supreme Court will consider in the 3 00:00:05,880 --> 00:00:09,559 Speaker 1: upcoming term, but some of the most prominent high tech 4 00:00:09,640 --> 00:00:12,080 Speaker 1: companies have filed a Friend of the Court brief in 5 00:00:12,080 --> 00:00:15,000 Speaker 1: this case of a convicted armed robber. More than a 6 00:00:15,040 --> 00:00:19,279 Speaker 1: dozen companies, including Apple, Google, Facebook, and Verizon, are asking 7 00:00:19,320 --> 00:00:22,159 Speaker 1: the court to make it harder for law enforcement to 8 00:00:22,200 --> 00:00:25,760 Speaker 1: get cell phone data by requiring a warrant. The case 9 00:00:25,800 --> 00:00:29,080 Speaker 1: doesn't involve the collection of intimate information, but rather the 10 00:00:29,120 --> 00:00:33,400 Speaker 1: collection of cell site location information that can reveal where 11 00:00:33,440 --> 00:00:37,280 Speaker 1: a person has been. We'll be discussing the implications for 12 00:00:37,320 --> 00:00:39,800 Speaker 1: the privacy of personal data in the hands of a 13 00:00:39,880 --> 00:00:43,479 Speaker 1: third party with our guest George Newhouse, a partner at 14 00:00:43,560 --> 00:00:47,120 Speaker 1: Denton's and a former federal prosecutor, and Scott Vernick, a 15 00:00:47,159 --> 00:00:50,920 Speaker 1: partner at Fox Rothschild. George tell us a little about 16 00:00:50,920 --> 00:00:53,279 Speaker 1: the criminal case here so that we can put this 17 00:00:53,320 --> 00:00:57,800 Speaker 1: in context. Happy to do so, June, and good morning, um. 18 00:00:57,840 --> 00:01:00,840 Speaker 1: The case arises from a yield by a guy named 19 00:01:00,840 --> 00:01:06,160 Speaker 1: Timothy Carpenter, who is convicted in robbing a series of 20 00:01:06,200 --> 00:01:10,480 Speaker 1: stores in Maryland and Ohio, and federal prosecutors in that case, 21 00:01:11,000 --> 00:01:13,319 Speaker 1: and this is usually the situation in these cases. You 22 00:01:13,360 --> 00:01:16,280 Speaker 1: have to prove that was the defendant who committed the robberies, 23 00:01:16,720 --> 00:01:19,600 Speaker 1: and they did that in part by placing him near 24 00:01:19,640 --> 00:01:23,760 Speaker 1: the site of various robberies using cell phone location information, 25 00:01:23,800 --> 00:01:28,400 Speaker 1: which is basically, you're with our mobile phones are mobile providers, 26 00:01:28,520 --> 00:01:31,360 Speaker 1: and know at all times exactly where we are because 27 00:01:31,400 --> 00:01:33,600 Speaker 1: there is a cell phone tower that is picking up 28 00:01:33,600 --> 00:01:38,039 Speaker 1: your signal. That information does not convey, of course, what 29 00:01:38,200 --> 00:01:42,480 Speaker 1: was discussed over the phone. Uh. Typically federal prosecutors attained 30 00:01:42,600 --> 00:01:46,080 Speaker 1: state prosecutors that came in information by way of a subpoena, 31 00:01:46,200 --> 00:01:48,720 Speaker 1: which is to say, they issue a grand jury subpoena 32 00:01:49,040 --> 00:01:53,160 Speaker 1: that requires not even probable cause, simply a reasonable belief 33 00:01:53,200 --> 00:01:56,480 Speaker 1: that there might be relevant information. And that information, of 34 00:01:56,520 --> 00:01:59,720 Speaker 1: course and helped convict Mr Carpenter. So he has now 35 00:02:00,000 --> 00:02:03,120 Speaker 1: aiming that that was a search under the Fourth Amendment. 36 00:02:03,520 --> 00:02:06,880 Speaker 1: And if it's a search, it wasn't supported by a warrant, 37 00:02:07,320 --> 00:02:10,480 Speaker 1: even questionable whether there was probable cause. So it is 38 00:02:10,560 --> 00:02:14,639 Speaker 1: yet another interesting application of novel technology to the Fourth Amendment. 39 00:02:15,480 --> 00:02:19,320 Speaker 1: And Scott, what's the government's argument for not requiring a 40 00:02:19,400 --> 00:02:22,960 Speaker 1: warrant in a case like this. Well, I think the 41 00:02:23,000 --> 00:02:27,760 Speaker 1: government has sort of at least one principal argument, and 42 00:02:27,800 --> 00:02:32,560 Speaker 1: that is that under a doctrine previously adopted by the 43 00:02:32,639 --> 00:02:37,000 Speaker 1: Supreme Court, uh in a case called Smith, UH the 44 00:02:37,120 --> 00:02:40,960 Speaker 1: view is Smith versus Maryland. To be more specific from nine, 45 00:02:41,720 --> 00:02:47,200 Speaker 1: the view is that, uh, the information uh that consumers 46 00:02:47,320 --> 00:02:52,799 Speaker 1: give up to their cellphone companies uh and by extension, 47 00:02:52,800 --> 00:02:56,960 Speaker 1: the cell phone towers is sort of voluntarily given up. Uh. 48 00:02:57,000 --> 00:03:02,200 Speaker 1: And it's sort of a voluntarily uh dischool those business record. UH. 49 00:03:02,240 --> 00:03:06,639 Speaker 1: And because of the quote unquote voluntary nature, there's no 50 00:03:06,919 --> 00:03:11,640 Speaker 1: reasonable expectation of privacy uh expected in the record that 51 00:03:11,720 --> 00:03:15,520 Speaker 1: the phone companies have, and therefore there's no need to 52 00:03:15,560 --> 00:03:19,920 Speaker 1: have any Fourth Amendment protection around it because essentially the 53 00:03:19,960 --> 00:03:23,000 Speaker 1: consumers have relinquished that uh you know, when they give 54 00:03:23,080 --> 00:03:26,919 Speaker 1: up that information uh to their cell phone provider. Now, 55 00:03:27,040 --> 00:03:31,040 Speaker 1: the question that the privacy advocates really raises whether or 56 00:03:31,040 --> 00:03:34,960 Speaker 1: not it's really voluntary. I mean, when you and me 57 00:03:35,040 --> 00:03:37,560 Speaker 1: and George when we sign on to our cell phone 58 00:03:37,760 --> 00:03:41,560 Speaker 1: carrier contracts, I'm not sure how voluntary and act that is. 59 00:03:42,000 --> 00:03:43,920 Speaker 1: That's pretty much what the lawyers would call on a 60 00:03:44,000 --> 00:03:46,160 Speaker 1: contract of adhesion. The terms of the terms you want 61 00:03:46,240 --> 00:03:48,480 Speaker 1: to pay them where you find a different carrier. And 62 00:03:48,560 --> 00:03:50,960 Speaker 1: so I think that you know, that's part of it, 63 00:03:51,000 --> 00:03:55,080 Speaker 1: that you can't really relinquish a constitutional right unless you 64 00:03:55,240 --> 00:03:57,720 Speaker 1: unless you do so in a knowing and voluntary way. 65 00:03:57,840 --> 00:04:01,640 Speaker 1: And there hasn't been any real volunt terry characteristic here. 66 00:04:02,120 --> 00:04:05,560 Speaker 1: In addition to which there's just sort of the overall 67 00:04:05,920 --> 00:04:10,320 Speaker 1: notion very much present when the Supreme Court ruled in 68 00:04:10,640 --> 00:04:13,600 Speaker 1: uh the Jones case, which dealt with the GPS device, 69 00:04:13,640 --> 00:04:18,440 Speaker 1: and in the Riley case, which in which Justice Roberts 70 00:04:18,440 --> 00:04:20,200 Speaker 1: said that you needed a search warrant to look in 71 00:04:20,279 --> 00:04:23,880 Speaker 1: a cell phone. That again, you know the way that 72 00:04:24,080 --> 00:04:28,960 Speaker 1: the there there is so much that digital information, you know, 73 00:04:29,080 --> 00:04:33,080 Speaker 1: tells us about people today. Um that clearly it couldn't 74 00:04:33,080 --> 00:04:35,760 Speaker 1: have been contemplated by the framers of the Constitution. And 75 00:04:35,800 --> 00:04:38,640 Speaker 1: the problem is is that if you were to take 76 00:04:38,680 --> 00:04:43,400 Speaker 1: George's cell phone location data over a period of time 77 00:04:43,560 --> 00:04:46,719 Speaker 1: or yours, let's say over a year, and I think 78 00:04:46,720 --> 00:04:50,200 Speaker 1: they should I think they should take Junes George. You know, 79 00:04:50,720 --> 00:04:53,800 Speaker 1: we have in in about just thirty seconds. And we 80 00:04:53,880 --> 00:04:58,400 Speaker 1: will return to this argument. But what is the significance 81 00:04:58,520 --> 00:05:02,679 Speaker 1: of these tech companies profile intervening in this criminal case. 82 00:05:03,880 --> 00:05:06,279 Speaker 1: A great question, June I. It needs to be drilled 83 00:05:06,279 --> 00:05:10,240 Speaker 1: down upon because the tech companies are generally resisting what 84 00:05:10,520 --> 00:05:13,839 Speaker 1: some people see, certainly I do as legitimate request by 85 00:05:13,920 --> 00:05:17,960 Speaker 1: law enforcement for UM data on people's cell phones. Apple, 86 00:05:18,040 --> 00:05:21,520 Speaker 1: for example, refused to provide UM the key the back 87 00:05:21,560 --> 00:05:24,839 Speaker 1: door to allow the the FBI to break into the 88 00:05:24,880 --> 00:05:28,840 Speaker 1: cell phone by the sambur and Dino terrorists. UM. They 89 00:05:28,880 --> 00:05:33,320 Speaker 1: are currently resisting requests in prosecutors in the District of Columbia, 90 00:05:33,680 --> 00:05:36,760 Speaker 1: even search warrants, and they want to get information to 91 00:05:37,240 --> 00:05:40,560 Speaker 1: enable law enforcement. I understand the need for privacy, but 92 00:05:40,760 --> 00:05:44,280 Speaker 1: it is interesting because that thought, George, we are going 93 00:05:44,279 --> 00:05:47,200 Speaker 1: to talk more about this coming up on Bloomberg Law. 94 00:05:48,400 --> 00:05:51,200 Speaker 1: At an event in New Zealand last month, Chief Justice 95 00:05:51,279 --> 00:05:54,760 Speaker 1: John Roberts expressed concerns about the law keeping up with 96 00:05:54,839 --> 00:05:58,880 Speaker 1: the privacy implications of new technology. Quote, there are devices 97 00:05:58,960 --> 00:06:01,479 Speaker 1: now they can allow lawn forcemen to see through walls, 98 00:06:01,640 --> 00:06:04,760 Speaker 1: heat imaging and all this kind of thing. Well, what 99 00:06:04,880 --> 00:06:07,520 Speaker 1: does that do to a body of law that's developed 100 00:06:07,560 --> 00:06:10,360 Speaker 1: from common law days in England about when you can 101 00:06:10,400 --> 00:06:13,640 Speaker 1: search a house. I've been talking with George Newhouse, a 102 00:06:13,680 --> 00:06:17,080 Speaker 1: partner at Danton's and a former federal prosecutor, and Scott Vernick, 103 00:06:17,160 --> 00:06:20,320 Speaker 1: a partner at Fox Rothschild, about a case before the 104 00:06:20,360 --> 00:06:26,800 Speaker 1: Supreme Court involving cell phones. George, how far is the 105 00:06:26,880 --> 00:06:31,400 Speaker 1: law behind the technology? Well, the law is actually keeping 106 00:06:31,480 --> 00:06:35,120 Speaker 1: up with technology fairly quickly. But the problem is the 107 00:06:35,200 --> 00:06:40,800 Speaker 1: law can't anticipate, as Justice Roberts pointed out, the next advance, 108 00:06:41,000 --> 00:06:43,760 Speaker 1: so that we're getting these novel questions. And this one 109 00:06:43,880 --> 00:06:47,000 Speaker 1: is a great, a great example. You know, cell phone 110 00:06:47,080 --> 00:06:51,120 Speaker 1: day location data really is the equivalent of everyone carrying 111 00:06:51,120 --> 00:06:54,520 Speaker 1: around if they've got their cell phone a personal locator 112 00:06:54,560 --> 00:06:57,520 Speaker 1: beacon and and it is and can be chilling to 113 00:06:57,520 --> 00:07:00,480 Speaker 1: think that that information can be available to the government 114 00:07:00,839 --> 00:07:04,239 Speaker 1: on on a showing really love that equivalent to getting 115 00:07:04,320 --> 00:07:08,039 Speaker 1: a certain subpoena, not a search warrant. So that is 116 00:07:08,080 --> 00:07:09,920 Speaker 1: that is the problem. That's why every one of these 117 00:07:10,600 --> 00:07:13,320 Speaker 1: cases that comes up is so interesting to look at 118 00:07:13,400 --> 00:07:16,640 Speaker 1: because there isn't the body of precedent that the courts 119 00:07:16,720 --> 00:07:21,680 Speaker 1: usually depend upon in issuing these rulings. Scott, the Supreme 120 00:07:21,680 --> 00:07:25,240 Speaker 1: Court has limited the government in some recent cases involving 121 00:07:25,280 --> 00:07:29,040 Speaker 1: a GPS to track a suspects movements and requiring a 122 00:07:29,160 --> 00:07:31,400 Speaker 1: warrant to search a cell phone of a person who 123 00:07:31,440 --> 00:07:34,120 Speaker 1: had been arrested. So does the court seem to be 124 00:07:34,160 --> 00:07:37,600 Speaker 1: going in the direction of protecting a person's privacy from 125 00:07:37,720 --> 00:07:41,760 Speaker 1: government intrusion without a warrant. Well, I think it's a 126 00:07:41,760 --> 00:07:45,680 Speaker 1: little hard to say, because the cases really don't get 127 00:07:45,720 --> 00:07:47,880 Speaker 1: indicate a trend. I mean, when you look at the 128 00:07:47,960 --> 00:07:51,720 Speaker 1: Jones case, which had to do with installing and monitoring 129 00:07:51,760 --> 00:07:56,600 Speaker 1: a GPS device on a suspected drug dealers vehicle, the 130 00:07:56,680 --> 00:08:01,080 Speaker 1: difficulty there is that the car was actually located on 131 00:08:01,120 --> 00:08:04,600 Speaker 1: a driveway at the point at which the GPS monitoring 132 00:08:04,680 --> 00:08:07,400 Speaker 1: device was put on the car, and part of the 133 00:08:07,440 --> 00:08:11,080 Speaker 1: court's reasoning is that the law enforcement actually went onto 134 00:08:11,120 --> 00:08:15,080 Speaker 1: the driveway to install the device, and so part of 135 00:08:15,120 --> 00:08:18,040 Speaker 1: what influenced the decision was the GPS device, but also 136 00:08:18,160 --> 00:08:21,320 Speaker 1: clearly law enforcement had gone on to private property. I 137 00:08:21,320 --> 00:08:23,960 Speaker 1: don't think anybody disputes that a driveway as private property 138 00:08:24,160 --> 00:08:27,080 Speaker 1: without a warrant, And so there were some traditional notions 139 00:08:27,080 --> 00:08:30,400 Speaker 1: there of expectation of privacy that we're obviously influencing or 140 00:08:30,440 --> 00:08:33,679 Speaker 1: seemed to be influencing. The court's decision. Alright, So yeah, 141 00:08:33,679 --> 00:08:35,800 Speaker 1: I think I just I want to I want to 142 00:08:35,800 --> 00:08:40,080 Speaker 1: see if Georgia agrees with that. Do you see a trend, George, 143 00:08:41,160 --> 00:08:43,079 Speaker 1: You know, as I agree with Scott, I think it's 144 00:08:43,200 --> 00:08:46,240 Speaker 1: very difficult to see a clear trend. H The cases 145 00:08:46,280 --> 00:08:49,679 Speaker 1: are really going both directions, and so it really gets 146 00:08:49,679 --> 00:08:53,920 Speaker 1: down to what is a reasonable expectation of privacy with 147 00:08:54,000 --> 00:08:56,240 Speaker 1: respect to the current and if you have, for lack 148 00:08:56,280 --> 00:08:59,400 Speaker 1: of a better term, intrusion or government gathering certain data. 149 00:09:00,120 --> 00:09:02,360 Speaker 1: Hard to know where the court's going to go. Certainly, 150 00:09:02,640 --> 00:09:05,520 Speaker 1: the more novel the use of technology, as in thermal 151 00:09:05,559 --> 00:09:09,480 Speaker 1: these thermal imaging devices, um, the more likely it is 152 00:09:09,520 --> 00:09:11,200 Speaker 1: that the court is going to say, hey, you know what, 153 00:09:11,360 --> 00:09:15,760 Speaker 1: that's that's beyond the pale. That's something that now gives 154 00:09:15,800 --> 00:09:19,280 Speaker 1: the government access to data that uh, no one would 155 00:09:19,280 --> 00:09:23,160 Speaker 1: have anticipated. The cases Seamen and certainly Smith versus Maryland 156 00:09:23,160 --> 00:09:27,600 Speaker 1: as an example, are turning on did the individual effect 157 00:09:27,640 --> 00:09:30,160 Speaker 1: whose Fourth Amendment rights were affected? Did that person have 158 00:09:30,559 --> 00:09:33,880 Speaker 1: any reason to know that his data was being shared, 159 00:09:34,040 --> 00:09:36,880 Speaker 1: for example, with with the phone company. You know, you 160 00:09:36,960 --> 00:09:39,640 Speaker 1: know when you dial a phone number that that information 161 00:09:39,720 --> 00:09:42,240 Speaker 1: is being shared with a third party of the phone company, 162 00:09:42,520 --> 00:09:46,080 Speaker 1: and therefore it can be shared with the government. Scott, 163 00:09:47,080 --> 00:09:52,679 Speaker 1: Does this case have implications beyond hysterical historical sorry, does 164 00:09:52,720 --> 00:09:58,680 Speaker 1: the case have implications beyond historical cell phone data? Oh? 165 00:09:58,720 --> 00:10:01,720 Speaker 1: I think I think it. So, I think it absolutely does. 166 00:10:01,800 --> 00:10:05,120 Speaker 1: I mean, you know, I I uh, certainly without a doubt. 167 00:10:05,160 --> 00:10:07,600 Speaker 1: I mean, uh, you know, one of the areas that 168 00:10:07,720 --> 00:10:12,120 Speaker 1: is still uh very much uh open to question and 169 00:10:12,120 --> 00:10:15,000 Speaker 1: and open uh in terms of jurisprudence or whether or 170 00:10:15,000 --> 00:10:17,720 Speaker 1: not you know, the cases have been decided is the 171 00:10:17,800 --> 00:10:20,960 Speaker 1: case that George mentioned earlier on you know, which is 172 00:10:20,960 --> 00:10:25,400 Speaker 1: whether or not, for example, UH, courts can force uh 173 00:10:25,679 --> 00:10:29,440 Speaker 1: telephone can force cell phone providers or the or the 174 00:10:29,480 --> 00:10:32,920 Speaker 1: makers of O E M equipment like Apple and Samsung 175 00:10:32,920 --> 00:10:36,040 Speaker 1: and others to produce a backdoor, to produce a backdoor 176 00:10:36,400 --> 00:10:39,800 Speaker 1: uh for encrypted communications. And so I think that, you know, 177 00:10:39,840 --> 00:10:43,160 Speaker 1: what is decided here may well have implications for that. 178 00:10:43,200 --> 00:10:46,520 Speaker 1: I mean, that's the San Bernardino case where essentially Apple said, well, 179 00:10:46,520 --> 00:10:48,679 Speaker 1: we're not you know, everything is encrypted and we're not 180 00:10:48,720 --> 00:10:51,000 Speaker 1: going to create a backdoor, because you know, that's a 181 00:10:51,120 --> 00:10:54,760 Speaker 1: very slippery slope once you once you start down that path. Similarly, 182 00:10:55,240 --> 00:10:58,640 Speaker 1: you know, there's still a fair amount of UH consternation 183 00:10:58,679 --> 00:11:02,280 Speaker 1: and contention over whether or not when American tech companies 184 00:11:02,600 --> 00:11:06,440 Speaker 1: locate data abroad in data centers, for example, in UH 185 00:11:06,520 --> 00:11:09,439 Speaker 1: the European Union. UM, you know, whether or not H 186 00:11:09,640 --> 00:11:13,040 Speaker 1: search warrants extend or don't extend to that data. And so, 187 00:11:13,360 --> 00:11:16,600 Speaker 1: you know, I think that the thing that the Fourth 188 00:11:16,640 --> 00:11:19,080 Speaker 1: Amendment didn't quite see, and no reason why it should 189 00:11:19,200 --> 00:11:21,520 Speaker 1: have been able to look around the corner is, you know, 190 00:11:21,679 --> 00:11:25,960 Speaker 1: the traditional UH kinds of activities of law enforcement were 191 00:11:26,080 --> 00:11:29,840 Speaker 1: very pronounced and very present at the time. The tremendous 192 00:11:29,840 --> 00:11:33,120 Speaker 1: collection and aggregation of data and what you can do 193 00:11:33,200 --> 00:11:35,760 Speaker 1: with that and how intrusive that can be in terms 194 00:11:35,840 --> 00:11:37,760 Speaker 1: of our personal lives. I think that was a pretty 195 00:11:37,760 --> 00:11:39,880 Speaker 1: hard thing for the framers to see at the time, 196 00:11:39,920 --> 00:11:42,360 Speaker 1: and that's really what the courts are struggling with. And 197 00:11:42,480 --> 00:11:47,040 Speaker 1: about thirty seconds, George, what does it say that these 198 00:11:47,320 --> 00:11:51,080 Speaker 1: companies are getting more and more involved in cases that 199 00:11:51,280 --> 00:11:55,000 Speaker 1: don't involve them. What it tells me is that these 200 00:11:55,040 --> 00:11:59,560 Speaker 1: companies have a business interest, which is understandable in assuring 201 00:11:59,760 --> 00:12:02,840 Speaker 1: ERIC customers that they're standing up for and protecting their 202 00:12:02,840 --> 00:12:06,839 Speaker 1: privacy rights. UM Scott mentioned earlier. They go to great 203 00:12:06,920 --> 00:12:11,480 Speaker 1: links to now provide multiple layers of encryption and encrypted data. 204 00:12:12,000 --> 00:12:15,559 Speaker 1: And the fact that you'd have this petition Supreme Court 205 00:12:15,600 --> 00:12:20,400 Speaker 1: signed by Apple, Google, Snap, Twitter, Facebook tells me that 206 00:12:20,520 --> 00:12:23,440 Speaker 1: these companies have a marketing interest to stop you there. 207 00:12:23,520 --> 00:12:25,920 Speaker 1: We can talk about this for hours. Thank you both, 208 00:12:26,000 --> 00:12:30,199 Speaker 1: George Newhouse of Denton's and Scott Vernick of Fox Rothschild