Friday the Competitive Enterprise Institute filed an amicus brief in Carpenter v. United States, a Supreme Court case centered on whether or not a warrant is needed to collect customer data from cell phone providers. Arguing that digital Terms of Service and privacy policies are contracts that allocate property rights in data, CEI says that collecting such data should require a warrant. CEI is joined on the brief by the Cato Institute, the Reason Foundation, and the Committee for Justice.
“Thanks to a sort of ‘degraded’ legal status for data, the government is currently able to access huge amounts of often highly sensitive information about us without our say-so,” explained CEI Vice President Jim Harper. “Enjoying privacy on the terms we decide is one of the hallmarks of living in a free society. The government shouldn’t be able to collect personal communications data with just a subpoena, and we hope the Supreme Court finds it is unreasonable to gather this information without a proper warrant.”
When customers of telecom providers sign up for services, they enter into a contract that provides protection of data about them. The Supreme Court should recognize that it is property rights in data that make seizures and searches of data subject to the Fourth Amendment, not “reasonable expectations of privacy” or other confusing legal doctrines. Protecting privacy by requiring a warrant to access cell phone data will help to restrict government surveillance to when it is appropriate and legal.