Cell phones and the apps they use collect GPS data that continually record the movements of the phone—and its owner. This location data, which can show with precision where a cell phone user has been every moment over the course of years, can be stored by companies like Google. In the past decade, courts have begun approving police requests for so-called “geofence warrants,” which require these companies to turn over the location history and identities of people whose phone was near a specified place within a specified timeframe. In Chatrie v. United States, the Supreme Court is considering whether the Fourth Amendment applies to geofence warrants, and, if so, whether those warrants satisfy the Fourth Amendment’s requirements. Our brief explains that the constitutional right of the people to be secure in their papers and possessions cannot be squared with allowing the government unsupervised access to cell phone GPS data.
But what happens when the phone companies themselves, not the police, are the ones that misuse our data? The communications giants AT&T and Verizon failed to protect the privacy of their customers’ location data, and because of their failures, millions of customers had their location data sold to third parties, with these third parties able to track people’s phones with pinpoint precision to sensitive locations. When communications carriers like AT&T and Verizon violate the law, the Communications Act of 1934 authorizes the Federal Communications Commission (FCC) to impose forfeiture orders and provides a pathway for regulated entities to challenge those orders via jury trial in federal court. After AT&T and Verizon received forfeiture orders relating to their protection of consumer data, they argued that this two-stage enforcement process violates their Seventh Amendment right to a jury trial. CAC filed an amicus brief at the Supreme Court in support of the FCC to try to ensure that these companies can be held accountable when they violate the law. As our brief explains, historical practice confirms that enforcement schemes featuring an initial legal determination followed by a post-determination jury trial are not novel and satisfy the Seventh Amendment.
Finally, in Cisco Systems v. Doe, the Supreme Court is considering whether the Torture Victim Protection Act imposes liability on those who aid and abet torture abroad. This case arises from claims brought by Falun Gong practitioners who suffered torture in China at the hands of the government. The torture victims alleged that an American tech company, Cisco Systems, designed, built, and sold a tailor-made software system to facilitate China’s surveillance, capture, and torture of the Falun Gong adherents. They sued Cisco Systems under, among other things, the federal Torture Victim Protection Act (TVPA), which imposes liability on a person who “subjects an individual to torture.” Cisco argued that the TVPA does not cover those who “aid and abet” someone else’s commission of torture. Our amicus brief to the Supreme Court explains that the plain meaning of the TVPA makes clear that it covers those who aid and abet torture. When such basic human rights are at stake, companies must be brought to justice in federal court.
As Justice Roberts quipped during oral argument in Trump v. Barbara, circumstances may change, but “it’s the same Constitution.” With the stakes for our digital security higher than ever, the Constitutional Accountability Center is working to ensure that new technologies don’t evade and undermine our laws and our Constitution.
