Flash Digest – News in Brief

Supreme Court Hears Oral Argument in Cell Phone Privacy Case

The Supreme Court heard oral argument on November 29 in Carpenter v. United States, No. 16-402 (2017), the latest case testing the boundaries of digital privacy. The case presents the question of whether, under the Fourth Amendment, police should be required to obtain a search warrant before acquiring a user’s mobile phone records and location information from a telecommunications company. This issue comes on the heels of the Court’s 2014 decision in Riley v. California, 134 S.Ct. 2473 (2014), in which a unanimous Court recognized that police generally cannot search the digitally-stored content on a cellular phone without a warrant.

The petitioner, Timothy Carpenter, is the alleged mastermind of a series of armed robberies. During the course of investigation, police requested and received 127 days of cell-site records for Carpenter’s phone number. The records allowed investigators to infer that Carpenter was present at the sites of the crimes, and law enforcement arrested him accordingly. Since his conviction, Carpenter has argued that a warrant should have been required to obtain his location data. The trial court and federal appeals court disagreed, upholding Carpenter’s convictions.

While in Riley, the Court held that police must obtain a warrant before searching cell phone contents after making an arrest, in Carpenter, the government is relying on the “third-party doctrine”—the idea that Fourth Amendment protections do not extend to any information that is voluntarily shared with another party. The official transcript from oral argument shows the justices pushing on the idea of just how voluntarily people share their location with cell service providers. Chief Justice Roberts used the Riley decision to support the suggestion that having a cell phone is becoming less of a choice and more of a necessity.

According to Amy Howe of SCOTUSblog, the justices seem ready to acknowledge that changing technology may require changing laws, but they also seem rather unsure of how to do so. They toyed with the idea of carving out an exception to the third-party doctrine to account for new technologies, giving information like Carpenter’s 127 days of location records similar treatment to that afforded to medical records. Other justices pushed more on Carpenter’s position, asking why an arbitrary line should be drawn between requests for short periods of cell records, which do not require warrants, and requests for longer periods of cell records, which Carpenter posits should require warrants. Regardless of where the Court decides this new line should be drawn—if it should be drawn—the forthcoming decision will reflect a Court continuing to fine-tune the law to accommodate advancing technology.

New Hampshire Doctor Losing the Fight Against Computer Filing Mandates

Dr. Anna Konopka, an 84-year-old doctor from New London, New Hampshire, is struggling to regain her medical license after a series of investigations into her resistance to using a computer. Konopka voluntarily surrendered her medical license in October 2017 after a series of complaints, which investigators assert stem from her decision to refrain from digital record-keeping. In addition, Konopka, who does not own a computer, cannot access the online drug monitoring program where doctors report what quantities of opioids they prescribe, the use of which is mandatory for doctors in New Hampshire.

Machael Casey of AP News details the small-town style of Konopka’s practice. Konopka agrees to see anyone without insurance who can pay $50 in cash. Her office consists of two filing cabinets with patient records and a single landline telephone on her desk. Many patients chose Konopka because of the personal touch she brought to medicine. However, her resistance to using a computer-based filing system led the New Hampshire Board of Medicine to question her organization after a series of complaints were filed against her.

The first complaint came in October 2014 from the parents of a pediatric asthma patient, whose specific dosage decisions were left to the parents’ discretion. As a result of the parents’ complaint, Konopka was formally reprimanded by the medical board and underwent additional training in order to continue practicing. After the initial proceeding, the medical board learned of additional complaints against Konopka and voted to discipline her further in September 2017. Pending disciplinary action, Konopka voluntarily surrendered her license in order to settle the ongoing investigations.

Konopka has since been fighting the surrender, claiming she was under duress at the time she made her decision. She has conceded that if she can regain her medical license, she would be willing to learn how to use the state-mandated online monitoring program. However, her fight to regain her license is an uphill battle. Because she voluntarily surrendered her license in light of disciplinary action, in addition to the standard license application process, she must prove that she did no wrong. A New Hampshire state judge recently agreed with the state’s arguments stressing Konopka’s voluntariness and granted a motion to dismiss Konopka’s claim.

New Hampshire Public Radio’s Britta Greene reports that Konopka has filed a motion to reconsider along with approximately 30 affidavits from patients speaking to the quality of Konopka’s practice.

The FCC Sees Dead People: NY Attorney General Investigating Fraudulent Support for the Attack on Net Neutrality

Since the Federal Communications Commission (“FCC”) started fielding comments for their plan to dismantle net neutrality, bots have spammed the website with fraudulent comments. These comments have come from a host of people who conveniently appeared to organize their submissions in perfect alphabetical order. After reaching out to some of these eerily orderly contributors, ZDNet reported that several of the people they contacted denied having left any comments on the FCC’s website—one of the respondents said they did not even know what net neutrality was. Some respondents were even more impressive, having apparently submitted their comments from the grave.

This host of suspicious activity prompted one freelance writer to file a Freedom of Information Act request earlier this summer. The FCC was largely uncooperative and appears to be unconcerned with the fraudulent activity occurring on its website. New York Attorney General Eric Schneiderman began an investigation in June to track down the organizer by requesting data on the fraudulent submissions. However, his office was also met with a lack of cooperation from the FCC.

Schneiderman recently released an open letter to FCC Chairman Ajit Pai concerning its conduct and detailing the steps that Schneiderman’s office has taken thus far in requesting information to aid in their investigation. He states that his office has requested records on at least nine different occasions, reaching out to several FCC officials and offering to keep all shared information confidential. Schneiderman stresses that his investigation is not about the “substantive issues concerning net neutrality,” but rather about the privacy of the individuals whose identities were appropriated by the parties responsible.

Amidst the widespread unpopularity of the FCC’s plan, Techdirt’s Karl Bode suggests that the FCC is simply turning a blind eye to the fraudulent activity in order to mitigate the “massive public backlash.” In spite of the FCC’s lack of cooperation, Schneiderman has made no suggestion that the New York Attorney General’s office will cease its investigation. However, the investigation will be slow-moving if the FCC continues to ignore Schneiderman’s requests.

Zach Buchanan is a 1L student at Harvard Law School.