There will be three ballot questions this year. The first asks students if legislation restricting government purchases of citizen’s cell phone data should be enacted. While such legislation has been suggested, no such legislation specific to this question currently is pending. The two other questions are opinion questions designed to let students see where they stand regarding privacy versus security and cell phone use compared to their peers.
Question One: Should Congress pass legislation banning the government from purchasing citizen’s cell phone data from private data brokers?
Question Two: Recognizing both are necessary, which is MORE IMPORTANT to you, security or privacy rights?
Question Three: Are you willing to use cell phone apps even if they expose your data to private brokers who may sell it?
BRIEF SUMMARY OF THE ISSUE
Modern life often requires cell phone use. Justice Elena Kagan wrote the following in a 2026 Supreme Court decision (Chatrie v. United States) : “Modern cell phones, we observed a dozen years ago, are ‘such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of the human anatomy’ Riley v. California”.
Cell phone use, however, exposes considerable data about a person’s movements and habits. This data has been used by law enforcement and government agencies, usually as a result of a warrant, to solve crimes and prevent violent attacks. The Supreme Court in a series of rulings has attempted to extend Fourth Amendment protections to digital data that the Founders never envisioned existing. These protections would require the government to obtain a warrant before accessing this digital data, placing important restrictions on how and when it could be collected and how it could be used.
Recent reporting has shown that some federal government agencies are trying to find a way around obtaining warrants by purchasing mass amounts of citizen data from private data brokers. Depending on the cell phone’s operating system, various amounts of data are uploaded to the provider on a regular basis. Even when some of this data is shut off by the user in the phone’s settings, many apps collect the data anyway and sell it to brokers, who then sell it to advertisers and the government. This has allowed some government agencies to collect revealing data about the daily movements of citizens, allowing for surveillance on a scale not imagined by the Founders. This has opened a new area of concern in the ongoing conflict between security and privacy that all functioning democracies must debate. The question for this year’s mock election is whether the purchase of this data by federal agencies should be banned by congressional legislation.
SOME QUOTES AND BACKGROUND INFORMATION TO STIMULATE CLASS DISCUSSION
THE PRIVACY CONCERN
Some quotes concerning the importance of privacy in a democracy:
Fourth Amendment
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
"While the machinery of law enforcement and indeed the nature of crime itself have changed dramatically since the Fourth Amendment became part of the Nation's fundamental law in 1791, what the Framers understood then remains true today - that the task of combating crime and convicting the guilty will in every era seem of such critical and pressing concern that we may be lured by the temptations of expediency into forsaking our commitment to protecting individual liberty and privacy." ~Justice William J. Brennan, joined by Justice Thurgood Marshall, in dissent, United States v. Leon, 1984
“Recent inventions and business methods call attention to the next step which must be taken for the protection of the person, and for securing to the individual … the right ‘to be let alone’ … Numerous mechanical devices threaten to make good the prediction that ‘what is whispered in the closet shall be proclaimed from the house-tops.’” – Louis Brandeis, early 20th century, written before he joined the Supreme Court
“Ways may someday be developed by which the Government, without removing papers from secret drawers, can reproduce them in court, and by which it will be enabled to expose to a jury the most intimate occurrences of the home.” – Justice Louis Brandeis, dissenting opinion, Olmstead v. United States, 1928
Right to privacy is really important. You pull that brick out and another and pretty soon the house falls. – Tim Cook, former CEO of Apple (interview with Nancy Gibbs and Lev Grossman, time.com. March 17, 2016)
Recent reporting concerning government purchases of citizen cell phone data. Opinions, when expressed, favor privacy.
Your data is everywhere. The government is buying it up : NPR
THE SECURITY CONCERN
Preamble to the Constitution
WE THE PEOPLE, of the United States, in Order to form a more perfect Union, establish Justice, ensure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
“Freedom would be meaningless without security in the home and in the streets” – Nelson Mandela
It is not an easy question. Few, if any, people would want to be surveilled by the government, especially without their knowledge. However, federal, state, and local governments have used digital information to prevent terrorist attacks, school shootings, and other violent crimes. Digital data, for example the creation of a “geofence” (see Supreme Court case below), has also been used to solve crimes after they were committed.
WHAT HAS THE SUPREME COURT SAID ABOUT CELL PHONE DATA?
The Supreme Court in a series of decisions has attempted to extend Fourth Amendment protections to cell phone data, which is something the Founders never envisioned when they drafted the Constitution. Two of the most important cases are Carpenter v. United States (2018) and Chatrie v. United States (2026). The Carpenter case focused on the use of cell site location information (CSLI, or cell phone towers). The Chatrie case addressed technological advances since 2018 and the use of Google’s Location History. Since Chatrie built upon the findings in Carpenter and the most recent technology, and is also the most recent decision by the Court, we will summarize Chatrie for this question. As with any summary for younger students, there is a loss of detail, and teachers and more advanced students are invited to read the full decisions by following the links in this paragraph.
In May, 2019 a man robbed a bank in Midlothian, Virginia. Cameras noted a man on a cell phone was observed across the street who then entered the bank. Witnesses and additional surveillance footage were unable to identify the robber, who fled the scene. Almost a month later police obtained a warrant requiring Google to provide cell phone location history information to help identify the robber. Under the three-part warrant, Google helped the police construct a “geofence”, which was a digital perimeter around the bank and provided the police with information about all of the cell phone users who entered the bank in a period at the time of the robbery. The first two parts required anonymous data, which the police used to narrow down the suspects. The last part of the warrant required Google to supply the names and information of the final suspects, one of whom was Okelo Chatrie.
The Court had two questions before it. One was the structure of the three-part warrant, which was remanded back to the lower courts. Only the second question, whether a Fourth Amendment search had occurred when the police obtained the Google Location History for everyone who was inside the “geofence”, applies to the ballot question. The Court found that a Fourth Amendment search had indeed occurred. Justice Kagan wrote the majority opinion, Justices Roberts, Sotomayor, Jackson, and Kavanaugh joining. Justice Gorsuch wrote a concurring opinion. Justice Alito dissented, joined in parts by Justices Thomas and Barrett.
Key points of the decision:
- More so than the Cell Site Location Information (CSLI) used to extend Fourth Amendment protections in Carpenter, Google’s Location History provided an even more revealing and comprehensive diary of a person’s movements (approximately every two minutes a person’s location was identified within twenty meters, including possibly which floor of a building the person was on). This would allow the government a detailed window into the movements and associations of an individual and allow a surveillance back in time over the whole of a persons private activities.
- Because the mere act of turning on a cell phone shares data, and because their use is pervasive and insistent in modern life, and because cell phones often warn that the phone or app won’t work as intended if data is not shared, users are not understood to share their data in the traditional sense, such as someone voluntarily sharing their financial information with a bank to obtain it’s services. Therefore, the “Third Party Doctrine” does not apply.
- The Fourth Amendment protects people, not places, therefore a person’s movements can fall under the Amendment’s protections. Cell phone location history possibly marking movements up to 720 times a day could provide police with an intimate window of a citizen’s activities.
- “Whatever the form of an attempted incursion, the Fourth Amendment protects Americans’ long-held conviction that no government official should have free access to the most closely kept aspects of their lives…In recent decades, this Court has often confronted the challenge of adhering to those principles in the face of new technologies. “[I]nnovations in surveillance tools” have “enhanced the Government’s capacity to encroach upon areas normally guarded from inquisitive eyes.” … The Court, in response, has sought to “assure[] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.”
- Therefore, there is an “expectation of privacy” regarding cell phone data, requiring a proper warrant.
- Justice Gorsuch wrote an opinion concurring with the judgement, but arguing that the word “effects’ in the Fourth Amendment could be construed to cover cell phone data, and provided a better basis for the decision.
- Justice Alito, joined in part by Justices Thomas and Barrett, dissented, arguing in part that Chatrie had indeed voluntarily shared his data with Google and therefore the Third Party Doctrine applied.