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Tech titans Apple and Google, companies behind the major two smartphone operating systems, urged the Supreme Court this week to update its interpretation of Fourth Amendment privacy protections for the digital age.

In a briefing filed Monday night, the companies, alongside the likes of Cisco, Facebook, Microsoft, Verizon's Oath, and Tier-1 U.S. wireless carrier Verizon itself, asked the Court to “refine the application of certain Fourth Amendment doctrines to ensure that the law realistically engages with internet-based technologies and with people’s expectations of privacy in their digital data.”

According to the companies, the transmission of “highly personal information” is an inherent feature of how internet-connected and networked devices worked. Since these devices have become so ubiquitous, Fourth Amendment privacy protections “must adapt to this new reality,” they said.

The comments come in the context of the Supreme Court's decision to hear a case – Carpenter v. United States about law enforcement's ability to obtain cellular location data without a warrant.

“The analog-era notion that transmission of data to a third party is necessarily 'voluntary' conduct that precludes Fourth Amendment protection should not apply in a world where devices and applications constantly transmit data to third parties by dint of their mere operation,” the companies wrote. “No constitutional doctrine should presume that consumers assume the risk of warrantless government surveillance simply by using technologies that are beneficial and increasingly integrated into modern life. Similarly, the fact that certain digitally transmitted information might have been traditionally classified as 'non-content' should not unconditionally bar Fourth Amendment protection, as this data can often be highly revealing of the intimate details of a user’s life.”

The tech giants are instead advocating for the Court to adopt a more flexible approach that focuses on “the sensitivity of the data at issue and the circumstances of its transmission to third parties.”

The reality of the Digital Age has been legally recognized by at least one state. California in 2015 passed a law requiring police to get a court order before they can search messages, photos and other digital data stored on phones or company servers. More on that here.

According to the American Civil Liberties Union (ACLU), which is representing Timothy Carpenter in the case and posted the brief, the Supreme Court case is scheduled to be heard in the fall.

 

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