Should police and the government be able to track you by your cell phone GPS without obtaining a search warrant?
A federal appeals court appears to believe so, and recently ruled that tracking suspected criminals by their cell phones is similar to tailing their car or tracking their scent with police dogs.
Civil liberties groups say the broad ruling, handed down by the Sixth Circuit Court of Appeals in Ohio, could have sweeping impacts on the Fourth Amendment privacy rights of the innocent as well as those suspected of crimes.
The case involves alleged marijuana trafficker Melvin Skinner, who was busted with 1,100 pounds of pot after a complicated Drug Enforcement Administration (DEA) investigation that involved tracking Skinner's movements by his prepaid cell phone for three days. To track Skinner, the DEA obtained various forms of cell phone data, including cell site information, GPS real-time location data and "ping" data.
Agents gathered Skinner's cell phone information and tracked him without a search warrant and instead obtained a court order that did not meet the probable cause standard of most search warrants. The American Civil Liberties Union (ACLU) and the Electronic Frontier Foundation (EFF) filed briefs in similar cases arguing that warrantless cell phone tracking and data access violates the Fourth Amendment, which protects citizens against unreasonable search and seizure without probable cause.
Skinner's own lawyers argued that his Fourth Amendment rights were violated because cell phone records are not publicly available and Skinner reasonably expected them to remain private unless a warrant was produced. (A reasonable expectation of privacy is the constitutional standard used to determine whether privacy rights have been violated). The court, however, argued that Skinner was not entitled to assume the "untrackability" of his phone.
"If a tool used to transport contraband gives off a signal that can be tracked for location, certainly the police can track the signal," the court wrote.
Translation: because cell phones can be used to commit crimes, the Fourth Amendment does not protect cell phone privacy. The civil liberties groups disagree and worry that the judges, eager to catch an obvious criminal, have set a dangerous precedent for everyone else.
"The mere fact that the police are capable of tracking someone doesn't mean they're entitled to do so without first getting a warrant, any more than the mere fact that it's easy to break down someone's front door or open their postal mail gives the police the right to take these steps without a warrant," said ACLU staff attorney Catherine Crump.
Civil liberties groups are not opposed to police using cell phone technology to track suspects, but they say cops should get a search warrant before gathering phone usage and geographical data on individuals. Under the Fourth Amendment, they argue, it's reasonable for individuals and society to expect such information to be private, even if it's being emitted in a public place.
Skinner may be a criminal, but the ACLU and EFF say such rulings are eroding society's definition of what can be considered a reasonable expectation of privacy as rapidly expanding communication technologies and social media are quickly changing our social landscape. Police and government authorities can now use IP addresses, tweets, cell phone location records and many other electronic footprints to paint a clear picture of an individual's everyday life - if not their every move - and laws protecting personal privacy are failing to keep up with the technology that makes it all possible.
"We're entering into a phase where the exceptions to the warrant requirement threatens to swallow the rule itself," said Hanni Fakhoury, an EFF staff attorney and former federal defense lawyer. "I think we are entering a crossroads in our society where there needs to be this discussion on how much of our privacy rights we are willing to give up for security."
From predator drones landing in the hands of domestic law enforcement to mass surveillance technologies and even Facebook, the right to privacy in America is standing on shaky ground, especially when authorities can contact private third parties like cell phone companies and social media firms for our personal information. Consider the case of Malcolm Harris, who was arrested with 700 other Occupy protesters on the Brooklyn Bridge during an Occupy Wall Street protest last October.
Harris was charged with disorderly conduct, and, in early 2012, prosecutors requested that Twitter hand over tweets and Harris' account information for an ongoing criminal investigation. Harris himself challenged the subpoena, but the court ruled that he had no standing because the information, which including his own tweets, belonged to Twitter. Twitter also moved to quash the request, but the court denied the company's motion as well.
The EFF argues such personal information, such as IP and email addresses, should be handed over under a search warrant, not just a simple subpoena.
"We are going to give away our privacy because we are going to reach a point where society will not take a reasonable expectation of privacy to be reasonable," said Fakhoury. "What I think is interesting and what I worry about is, if you give your right to privacy and you give up your information [to a third party], the government is going to take it."
Fakhoury said there are some laws protecting Americans and their information from unlawful searches and surveillance, but lawmakers have not been able to keep up with continuously advancing technology and new legal dilemmas posed by social media and the Internet.
"If you tells us the rules beforehand we would probably play by them, but as it happens we have to make it up as we go along," said Lt. Raymond Foster, a former Los Angeles police officer and expert on police technology.
The debates over cell phone tracking and evolving definitions of privacy are far from over. Another case on cell phone privacy will be heard in the Fifth Circuit Court of Appeals in Texas on October 1, and both the ALCU and EFF have filed briefs in support of a judge who ruled that criminal investigators could not demand 60 days worth of cell location phone records from two cell phone companies without a search warrant.