US Supreme Court gives Privacy New Breath

The US Supreme Court rules in Carpenter v United States, 16-402,  that the federal government generally needs a warrant to access historical cell phone location records, finding that the data deserves more stringent protection than other customer information held by service providers.

The Petitioner, Timothy Ivory Carpenter was charged in 2011 with six counts of robbery and an additional six counts of carrying a firearm during a federal crime of violence. However, there was no direct evidence linking him to the robberies.

Based on the information the FBI had extracted from other suspects potentially linking Carpenter to the robberies, the prosecutors applied for court orders under the Stored Communications Act to obtain Carpenter’s and several other suspects’ cell phone records.

Subsequently, the Government obtained Carpenter’s cell-site location information (CSLI). These are time-stamped records that a phone generates each time it connects to a cell site, without any affirmative act on the user’s part beyond powering.

[Image Credit: https://www.aclu.org]

From the CSLI records, 12,898 location points cataloguing Carpenter’s movements over 127 days—an average of 101 data points per day were obtained.

Carpenter’s move before the District Court to suppress the data, arguing Government’s violation of the Fourth Amend­ment, prohibiting seizure of the records without obtaining a warrant supported by probable cause, was denied.

The prosecutors relying Carpenter’s CSLI records and the on circumstantial evidence derived therefrom, showed the Trial Court that Carpenter’s phone was near four of the robbery locations at the time those robberies occurred thus securing a conviction.

The Federal Court of Appeal for the Sixth Circuit affirmed the Trial Courts conviction, holding that Carpen­ter lacked a reasonable expectation of privacy in the location infor­mation collected by the FBI because he had shared that information with his wireless carriers.

The 5-4 US Supreme Court Opinion reverses the Court of Appeal decision finding that historical cell phone location records deserve heightened protection under the Fourth Amendment. The Court stated that “individuals have a reasonable expectation of privacy in the whole of their physical movements.”

The Court addressed itself to the application of the Fourth Amendment to the digital age ability to chronicle a person’s past movements through the record of his cell phone signals vis-à-vis the government’s right to seize and search.

While stating that historical cell-site records present even greater privacy concerns than the GPS monitoring since they give the Government near perfect surveillance allowing it to travel back in time to retrace a person’s whereabouts, the Court found it ironic for Government to contend on the one hand that CSLI data is less precise than GPS information, while having relied on and highlighting the data’s accuracy during its closing argument in Car­penter’s trial.

The Court also took judicial notice of technological advancement in the field of surveillance and telecommunication stating that:

“At any rate, the rule the Court adopts ‘must take ac­count of more sophisticated systems that are already in use or in development,’ and the accuracy of CSLI is rapidly approaching GPS-level precision.”

The Court also stated that:

“Mapping a cell phone’s location over the course of 127 days provides an all-encompassing record of the holder’s whereabouts. As with GPS information, the time­-stamped data provides an intimate window into a person’s life, revealing not only his particular movements, but through them his ‘familial, political, professional, reli­gious, and sexual associations.’”

Mapping of CSLI in a similar case: People v. Moalawi [Image Credits: https://www.eff.org]

The US Supreme Court decision is an insightful contribution to jurisprudence. It highlights the conflict between analogue and digital and the need to contextualise precedents while also addressing the place of circumstantial evidence in the digital era and in sharp conflict with the fundamental right of privacy.

Read related stories here, here, here and here.

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The Never Ending Oracle v Google Case

Oracle and Google have been on each other’s necks for almost eight years now. A legal battle ensued in 2010 which has seen both Oracle and Google exchange victory and loss as the matter has bounced up and down through appeals and two whole jury trials, the latest being a victory for Oracle before the US Court of Appeal for the Federal Circuit.

The matter goes for its third trial before the California District Court, for the determination of damages due to Oracle following the Federal Circuit’s finding that Google’s use of Oracle’s Application Programming Interfaces (APIs) did not amount to fair use under the US Copyright Act.

Oracle first sued Google in 2010 after it purchased Sun Microsystems which initially owned the Java APIs. Oracle’s argument was that Google’s Android OS based on customised Java APIs amounted to copyright infringement.

Read: Federal Circuit sends Oracle v. Google back for third trial

The case went to full trial in 2012 with Oracle losing following the determination of the California Northern District Court (Judge William Alsup) that APIs are not subject to copyright. The ruling, an important news item to entrepreneurs and software developers, favoured innovation and interoperability allowing software to use APIs without paying a licence fee.

Oracle being displeased with Judge Alsup’s decision appealed to the Federal Court. In 2014, the Federal Court found in favour of Oracle holding that APIs are copyrightable but without answering the question of fair use.

Google unsuccessfully petitioned the Supreme Court to review the Federal Circuit’s decision. The Supreme Court’s dismissal of Google’s Petition in June 2015 allowed for the matter to go back to the trial court for determination of the fair use defence.

The jury in the second trial court unanimously agreed in May 2016 that Google’s use of the Java APIs without licence amounted to fair use. Oracle then appealed to the Federal Circuit for the second time.

It is this second appeal that the Federal Court pronounced itself on 27 March 2018 holding in favour of Oracle. That Google’s use of Oracle’s Java APIs without licence did not amount to fair use but a copyright infringement and has thus sent it to the trial court – California District Court – for the determination of damages.

In the meantime, Google has the option of petitioning the Supreme Court for a second time for the review of the Federal Court’s determination. Should Google exercise this option, then the District Court will have to await the Supreme Court’s determination.

Read: The Case That Never Ends: Oracle Wins Latest Round vs. Google

However, Google’s failure to petition the Supreme Court will be then it would have been established that APIs enjoy copyright protection and that Google infringed upon Oracle’s copyright when it customised the Java APIs without a licence.

It will be interesting to see how this matter unfolds and how it will affect the now awakening Kenyan Market.

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