Verizon’s general counsel and head of public policy made a public case this week for reconsidering legal protections on customer data in light of evolving technology that allows companies to almost continuously track cell phone users’ location.
Craig Silliman’s opinion piece published Friday in Bloomberg’s Big Law Business comes just days after Reuters revealed that Yahoo, the company Verizon is reportedly buying, helped the U.S. government scan millions of emails for a specific “digital signature,” outraging privacy activists. It also follows several years of controversy since Verizon was implicated in the NSA’s mass surveillance program through the 2013 Snowden disclosures, which revealed the collection of thousands of its customers’ phone records.
The piece describes the legal ins-and-outs of location privacy, including a specific issue courts have been pondering over the last few years: whether or not customers, when they make phone calls or log into apps on their smartphones, are voluntarily handing over to private companies’ information about where they are and what they’re doing — making that information available to law enforcement without a warrant.
After detailing Verizon’s rapidly evolving ability to collect more and more specific location data on its own customers, Silliman urged courts to consider how the law might need to adapt. “I hope that [the court] takes into account how quickly technology — including the volume and precision of location information — is changing,” he wrote.
Verizon says the timing of the piece is unrelated to the recent related to Yahoo and email surveillance. “In fact, the piece was finished several weeks ago. We were preparing to post it when we got news of the Yahoo breach,” wrote Rich Young, Verizon policy spokesman, in an email to The Intercept. “We decided to delay the posting because we did not want the two to appear related, which they are not.”
According to Silliman and Verizon’s official Twitter account, the piece was born out of conversations that took place during company business meetings.
“We take our customers’ privacy very seriously, of course, and protect this information carefully,” he wrote. “But all companies, including Verizon, have a legal obligation to provide location information to law enforcement in response to valid warrants and orders.”
In the past, as Silliman notes, cellphones were much simpler — you dialed numbers and made phone calls, connecting to a major cellphone tower somewhere nearby. The Supreme Court ruled in the 1970s that by making that one call, you were voluntarily providing information about your general whereabouts and therefore didn’t have an expectation of privacy, a principle known as the third party doctrine.
But modern cellphones are constantly pinging cellphone towers, for every text, IM, Snapchat, Facebook message, Tweet, and email we send. Four recent cases where district courts ruled law enforcement can get location data without a warrant all used evidence from 2010 and 2011, Silliman noted — where the phones in question were still largely used only for calls and texts.
“None of the four cases involved location information generated when a device was used to access data, such as checking email, watching a video, or using apps,” he wrote.
That situation has now quickly evolved, according to Silliman. Verizon is providing more and more local towers to provide stronger data connections for its users — making location data more specific and accurate.
“Our network now collects more voluminous and more precise location information than when, in 2010 and 2011, law enforcement obtained the location information that gave rise to the four appellate cases described earlier,” he wrote.
Verizon, Young tells me, is not currently involved in pending litigation involving the third party doctrine, “but we are constantly assessing on-going litigation involving third parties to determine whether they present us with an opportunity to provide our views through amicus briefs,” he continued.
The issue is bound to keep coming up. Two cases are currently on appeal, and will involve more scrutiny of the third party doctrine in the modern age. Selliman’s points are “important,” wrote ACLU staff attorney Nathan Freed Wessler on Twitter, because “courts must account for advancing technology.”