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Cellphones And Son Of Sam

2009 iPhone displaying a point on a map
photo by William Hook

David Berkowitz committed mayhem across the New York City area for about a year between 1976 and 1977, taunting police for not catching him.

He was brought down by a humble parking ticket – and a key witness.

A Brooklyn woman who lived near one of the murder sites happened to be walking her dog around 2:30 am. She noticed a man passing her on the sidewalk who looked as if he were carrying something partly up his right sleeve; she heard shots five minutes later. When she learned of the double shooting in her neighborhood the next day, she contacted the police, certain the man she had seen was the killer. Under detective questioning, she recalled another key fact: She had seen a cop issuing a traffic ticket to a cream-colored car parked illegally nearby.

It turned out that Berkowitz had used his own, properly registered vehicle to travel to the crime scene. Police checking the parking tickets issued that night in that neighborhood were able to use that information to find Berkowitz at his address in Yonkers, New York, about 25 miles away. After his arrest, Berkowitz quickly confessed to being the “Son of Sam” killer. Had he not been caught, Berkowitz would have reportedly escalated his crime to a mass shooting in the Hamptons, an act that would have been horrifically ahead of its time. Instead he is incarcerated at Sullivan Correctional Facility to this day.

On the surface, the Son of Sam seems to have little in common with Tim Carpenter, nicknamed “Little Tim,” who was convicted of masterminding a series of Radio Shack robberies in Detroit 33 years later. The thieves stole bags full of smartphones, which turned out to be ironic, since Carpenter’s own smartphone provided the key evidence that led to his conviction.

One of Carpenter’s accomplices gave up his phone number under police questioning. Law enforcement then approached the suspect’s phone provider and asked for Carpenter’s location data. With that data in hand, the police were able to put Carpenter near the scenes of multiple Radio Shack robberies, supporting testimony from other men involved in the operation. Carpenter was convicted and sentenced to 116 years in prison.

His case has now made it to the U.S. Supreme Court, with a boost from the American Civil Liberties Union. While Carpenter is, by most accounts, a relatively small-time criminal, the nature of his conviction made it a focal point for the argument over how Fourth Amendment protections – protections against unreasonable searches and seizures – apply in the age of the smartphone. The ACLU argued that the government does not have the right to track everyone, everywhere, all the time, and that subpoenaing cell site location data represents this level of overreach.

The Fourth Amendment argument centers on two distinct but related readings. The first: Does someone carrying a cellphone have a reasonable expectation of privacy when it comes to his or her movements, considering that a phone regularly connects to nearby cell towers? The reasonable expectation of privacy test dates back to the late 1960s but is necessarily somewhat murky, especially when you involve a third party like a phone company.

The alternate reading, proposed by Justice Neil Gorsuch and met with some evident favor by a few of the liberal justices, asks whether the location information is itself the private property of the phone owner in the phone company’s custody. If cell site location is “customer proprietary network information,” as per federal law, Gorsuch proposes that scrutinizing that data is effectively a search of a citizen’s digital “paper,” even if it is in the phone company’s possession.

In this reading, in other words, I own the information about where I am, and if I own it, I should control it. To access the information, law enforcement would not simply need to subpoena the phone company; it would need a warrant.

A 2012 Supreme Court case found that law enforcement cannot attach a tracker to someone’s car and then use that information – doing so represents a trespass, under Fourth Amendment rules. Gorsuch is suggesting that subpoenaing cellphone records from the phone company might be more similar to such a trespass than to a witness observing a person on the street.

This brings us back to Berkowitz. He drove his own car, properly registered, to the murder scene. He got a ticket. A woman who happened to be there noticed both him passing her and the cop issuing the ticket. She later connected the dots and she reported what she saw to the police.

Berkowitz had no reasonable expectation of privacy walking down the street at that time; he did not control the information that his car had been ticketed. Today’s Berkowitz would know his cellphone is talking to a tower as he walks around carrying it, just as he knows that people on the street can see him. This knowledge does not require a high level of tech savvy; as Justice Anthony Kennedy joked during oral argument, “If I know it, everybody does.”

It’s a fallacy to suggest that the police of 1977 would have had to examine the movements of all 7 million or so New Yorkers to find the criminal terrorizing the city that summer. They couldn’t have done so, and they wouldn’t have tried even if they could. If they had access to the tracking abilities we have today, they would have asked phone providers which phones were near specific places at the specific times that crimes were committed there. For that matter, if they had access to today’s level of surveillance camera coverage, both public and private, they would have asked camera owners to supply the footage from the relevant time frames, not every minute of video available.

This very specific targeting by time and location would have necessarily limited the pool to suspects, victims and potential witnesses. Anyone who shows up at more than one of these scenes is a strong potential suspect (or astoundingly unlucky).

Since when do criminals get to own the information about their whereabouts near crime scenes? And since when do prospective witnesses have the right to prevent the police from even finding them? Both witnesses and suspects may, of course, decline to answer questions. The matter under discussion is entirely different from the Fifth Amendment protection, which I have discussed in this space before, allowing someone to refuse to talk to the authorities – including refusing to share the passcode to a confiscated device. Of course, if the authorities obtain a warrant and break into that device without the owner’s cooperation, any evidence they find is admissible.

But subpoenaing cell tower information is enormously different from forcing someone to talk when they don’t want to, or even from attaching a tracking device to private property without consent or a warrant. The argument that cellphone users own their personal location information effectively asserts that an omnipresent witness – the phone company – should withhold vital information from the authorities when asked to provide it.

If you do not want to create a record of your location, turn your device off or leave it at home.

Despite arguments to the contrary, the police are not tracking the movements of everyone, everywhere, at all times. The phone company is doing that, with the full knowledge and implicit consent of everyone being tracked. The police are merely seeking information specifically related to known events. Could they get a warrant for that information? Probably. But why should they have to, when the information they seek is held not by a suspect, or even by a traditional witness, but by a custodian of the record that all cellphone users knowingly create? David Berkowitz did not “own” the information that he happened to walk down that particular street on that particular night, whether the information came from a human witness or a digital one.

Big Brother is not always watching. Big Brother is looking for people in certain places, at certain times, when certain things happen. We can only hope that the Supreme Court justices perceive the difference.

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