U.S. supreme court rules on digital privacy, but the real issue is digital property

When most of the data you collect, create, buy or simply passively generate is stored on someone else’s server, what belongs to you and what belongs to the company storing it? What is your property?

That’s the question that the U.S. supreme court wrestled with in yesterday’s decision limiting police use of mobile phone tracking data. Every time a phone communicates with a cell site – which is pretty much all of the time – that contact is recorded by the mobile carrier. A bare 5 to 4 majority of the judges ruled that…

Cell phones and the services they provide are “such a pervasive and insistent part of daily life” that carrying one is indispensable to participation in modern society…an individual maintains a legitimate expectation of privacy in the record of his physical movements as captured through [cell-site location information].

The court decided that cops need to get a search warrant based on probable cause – a relatively high bar to clear – before rummaging through your cell location data, even though that data is, they say, owned by your mobile carrier.

But is it?

In an interesting dissent, the newest member of the U.S. supreme court, Neil Gorsuch, questioned that assumption. He objected to the decision on technical grounds, while at the same time saying, in effect, it didn’t go far enough…

Just because you entrust your data – in some cases, your modern-day papers and effects – to a third party may not mean you lose any Fourth Amendment interest in its contents…few doubt that e-mail should be treated much like the traditional mail it has largely supplanted— as a bailment in which the owner retains a vital and protected legal interest…

At least some of this Court’s decisions have already suggested that use of technology is functionally compelled by the demands of modern life, and in that way the fact that we store data with third parties may amount to a sort of involuntary bailment too…

No one thinks the government can evade [the existing] prohibition on opening sealed letters without a warrant simply by issuing a subpoena to a postmaster for “all letters sent by John Smith” or, worse, “all letters sent by John Smith concerning a particular transaction.” So the question courts will confront will be this: What other kinds of records are sufficiently similar to letters in the mail that the same rule should apply?…

It seems to me entirely possible a person’s cell-site data could qualify as his papers or effects under existing law. Yes, the telephone carrier holds the information. But [federal law] designates a customer’s cell-site location information as “customer proprietary network information” (CPNI), and gives customers certain rights to control use of and access to CPNI about themselves…Plainly, customers have substantial legal interests in this information, including at least some right to include, exclude, and control its use. Those interests might even rise to the level of a property right.

Gorsuch is arguing for a clearer and more fundamental definition of personal property in the digital age. He’s exactly right.