N.H. AG signals support of cellphone privacy standard that contradicts state law

  • Manchester attorney Gordon MacDonald listens during a public hearing in the executive council chambers Tuesday, March 28, 2017, at the New Hampshire Statehouse in Concord, N.H. MacDonald is Republican Gov. Chris Sununu's nominee to be the state's next attorney general. (AP Photo/Elise Amendola) Elise Amendola

Monitor staff
Thursday, November 30, 2017

The Live Free of Die State has one of the country’s stricter cellphone data privacy laws. But its attorney general has signed on to a legal brief in a U.S. Supreme Court case supporting a weaker federal standard that allows law enforcement to request consumer data without a warrant.

The U.S. Supreme Court heard oral arguments in a key digital privacy rights case Wednesday. The case, Carpenter v. U.S., concerns Timothy Carpenter, a Michigan man sentenced to 116 years in prison for a string of armed robberies in 2010. The American Civil Liberties Union has appealed his conviction, arguing that prosecutors violated the Fourth Amendment – which bars unreasonable searches – when they received months of data detailing his whereabouts from his cellphone provider without a warrant.

New Hampshire, through its attorney general, Gordon MacDonald, has weighed in. MacDonald was one of 17 state attorney generals to sign on to an amicus brief filed by Florida Attorney General Pam Bondi in support of the government’s position.

“The Fourth Amendment protects ‘the right of the people to be secure in their ... papers,’ not in the papers of others,” the brief reads.

Previous Supreme Court cases have established what’s known as the “third-party doctrine” – the idea that people lose their right to privacy when they voluntarily give information to third parties, like phone companies, internet service providers or banks.

But privacy advocates say the third-party doctrine is ill-suited to the current day, when the technology in people’s homes, cars and pockets creates vast troves of data about them – even when it’s not in use.

“This is really a landmark case about the vitality of constitutional privacy protections in the digital age,” said Nathan Wessler, the ACLU attorney arguing the case before the court on behalf of Carpenter.

While MacDonald’s signature on the amicus indicates an embrace of laxer requirements to obtain cellphone data, New Hampshire has a law on the books requiring law enforcement get a warrant before asking providers to hand over location records for their customers. It was introduced in 2015 by Rep. Neal Kurk, a Weare Republican known for his staunch advocacy of privacy rights. The law would remain in place, no matter the outcome in Carpenter v. U.S.

Unless they’re under investigation for a crime and investigators get a warrant, “the state has no business knowing where its citizens are,” Kurk said.

He said he was “surprised” MacDonald would sign on to Bondi’s brief, since no matter the outcome, he would have to uphold New Hampshire’s more stringent law.

“The brief to which the Attorney General signed on discusses the balance between the legitimate interests of law enforcement and a person’s privacy interests, and argues that the current Stored Communications Act strikes the right balance,” said Stephen Fuller, a senior assistant attorney general at the New Hampshire Department of Justice.

The Stored Communications Act is the federal law that requires investigators to show “reasonable grounds” that digital records from third parties are relevant to an ongoing investigation – a lower bar than probable cause.

Fuller added that the brief actually does make mention of New Hampshire’s law. The brief argues “Congress and the state legislatures are well suited to balancing these interests, and gives examples of laws in different states on the issue,” he said.

Advocates say state laws that require law enforcement get a warrant for these records are valuable – but that expectations of privacy shouldn’t change based on whether someone resides in New Hampshire instead of Michigan.

“Congress clearly wasn’t thinking about historical cellphone location data when it crafted the (Stored Communications Act), and it is because it is insufficiently protective that the Supreme Court needs to act, to give all Americans the same level of protection that New Hampshire residents now have,” Wessler said.

(Lola Duffort can be reached at 369-3321 or lduffort@cmonitor.com.)