Future Tense

The Supreme Court Needs To Weigh In on Warrantless Cell Phone Tracking by Law Enforcement

Your cell phone can tell law enforcement where you are

Photo by David Dermer/Getty Images

Americans should have no reasonable expectation of privacy over the location data stored by their mobile phone. That’s according the Obama administration—which argued in a New Orleans court today that police should be allowed access to phone location records without a warrant.

Following a landmark Supreme Court ruling in January, it is now difficult for police to stick a GPS tracking device on a car without a warrant. But the government is trying to get around that simply by switching up the technology.

In a case being heard at the in the 5th Circuit Court of Appeals , the Justice Department is arguing that, because cell phone records showing location are held by telecom companies, they are “third-party records” that do not fall under the search and seizure protections enshrined by the Fourth Amendment. “Customers have no protected privacy interest in historical cell-site records,” according to a brief filed by the DoJ.

The ACLU and the Electronic Frontier Foundation don’t agree. “If tracking a vehicle for 28 days is a search,” wrote the ACLU in its court brief, “then surely tracking a cell phone for 60 days is likewise a search, particularly because people constantly keep their cell phones with them in their purses and pockets as they traverse both public and private spaces.”

Currently, to obtain a court order giving them access to near real-time cell location data, law enforcement need only show that the information sought is “relevant and material to an ongoing investigation.” The Justice Department’s James Baker said last year that requiring more stringent approvals would slow down and hinder investigations. However, there is far from a legal consensus on the matter. In August a 6th Circuit appeals court ruled that warrantless cell phone tracking was legal. But a Pennsylvania court in 2008 said that handing over cell location data without a warrant would violate the Fourth Amendment, noting that without having to establish probable cause, the system was “particularly vulnerable to abuse” in part because “the location information so broadly sought is extraordinarily personal and potentially sensitive.” A Texas district court agreed in 2010.

Concerns about cell surveillance have slowly mounted in recent months. Much of it has been fueled by a congressional inquiry, which in July revealed that the major wireless carriers received more than 1.3 million requests for subscriber data from law enforcement in 2011 alone. But it’s unlikely that the ongoing 5th Circuit appeals case will have much of an impact. No matter what its outcome, the losing side is almost certain to appeal, as CNET’s Declan McCullagh has noted. Ultimately it is increasingly likely that the Supreme Court will sooner or later have to step in, as it did in the case of the GPS trackers, to make a final call.