Today the Supreme Court issued a ruling in the case of Carpenter vs. United States, in which it decided that authorities generally need a warrant to obtain cell phone location data from service providers.
It had been argued by prosecutors/governmental authorities that this information was a business record, kept and owned by the cell phone service providers, and thus it was simply a matter of a business handing over its records to a governmental authority, and not private records of a citizen being turned over.
Wyden said Friday's ruling was a "welcome step" for privacy and fighting against the expanding power of government surveillance.
"The court's recognition that digital devices can generate 'near-perfect surveillance' of a person's private life is a validation of the vital protections against unreasonable search and seizure provided by our Constitution," the senator said.
The losing argument was that phone companies can provide customers' data to law enforcement because they own those records, not the person. During the trial, US Deputy Solicitor General Michael Dreeben told the Supreme Court that people agree to hand over their information to providers for their service."It is asking a business to provide information about the business' own transactions with a customer," Dreeben said in November.
The Supreme Court rejected that argument, holding that the nature of the technology means that cell phone providers end up with a historical record of near-perfect surveillance and location information, in which users have a reasonable expectation of privacy.
How does this intersect with workers compensation and personal injury claims? For years insurance carriers have used private investigation firms to conduct surveillance on workers and other injured parties claiming disability. Often these investigators will go to the homes of injured parties, conduct video surveillance from the exterior, and even follow parties around to see if they are working or engaging in other activities that would be inconsistent with claims of injury or disability.
It is increasingly common for work injury and liability insurance carriers to present such video evidence in administrative hearings, court proceedings, and even as part of a records review package submitted to doctors for review. This is a key means of defending auto accident cases, workers' compensation cases, and other personal injury matters.
All of this is commonly done in the insurance industry, but not done in every case because the cost is so great. Usually this will only be done if there is a particular suspicion that the claim involved may be fraudulent. Sometimes employers will hear rumors that the injured person on workers' compensation benefits is actually working through a co-employee. At least that is the story-- in my personal experience it seems often motivated by a particular animus against the injured employee by the employer or insurance adjuster. But the cost remains a major factor despite the technology involved. So it is used less often than most insurance carriers would like because the return on investment is small-- you spend a known quantity on an investigator, yet have no idea whether the lead will generate any reason to deny benefits until after significant sums are spent.
Given how technology decreases costs in so many areas, it has become of concern that insurance carriers could use other means of technology to track individuals without their knowledge, infringing on their privacy rights by, for example, obtaining records of location by cell phone tracking data. This ruling ensures that any such information, to be released, must go through a warrant as the individual has a reasonable expectation of privacy.
This is important to safeguard liberty and privacy concerns, but in prosecuting claims for injury, it also becomes essential because while an inference (such as a clandestine and fraudulent return to work) may be drawn from location data showing movement during the day, there could also be other reasons for this movement, and months after the fact when such raw data is disclosed in a claim, it would be difficult to remember or prove what had happened.
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