As we move faster and deeper into the technology age, the law struggles to keep up with ever changing methods of communication and constant availability of modern day consumers. One thing the law has had to deal with over the last 10 years is just how “private” are cellphones and the data that can get gotten from them?
It’s one thing to say that the data on a phone is private and expected to be so – although if you don’t password protect you’re phone you’re an idiot – but what about the signal of the cellphone itself that lets you get reception and connect to the internet?
Law enforcement and cops have been using cell tower data to pinpoint the location of a cell phone (and by extension its user) for a few years now, but this was mostly done post-hoc, to prove that a particular individual was at a particular location at the time of the crime. I’m also fairly certain that prosecutors and cops have been getting warrants to track cell phones in order to locate an individual they are chasing.
But can all of this be done without a warrant? Is there a reasonable expectation of privacy in the location signal of your phone? Is this something that society today is prepared to accept? That one doesn’t generally expect someone to know where you are based on the contact your cellphone has (covertly and unbeknownst to you) with a cell phone tower and the cell phone company?
That’s what the 6th Circuit just said in a decision [PDF] released two days ago: that there is no reasonable expectation of privacy in that information and thus, no need to get a warrant in order to conduct surveillance. Not only does the Court seem to place much faith in the “well, he was a criminal, right, so screw his rights” doctrine, but also makes several false analogies to other, more traditional, no expectation of privacy scenarios:
Otherwise dogs could not be used to track a fugitive if the fugitive did not know that the dog hounds had his scent. A getaway car could not be identified and followed based on the license plate number if the driver reasonably thought he had gotten away unseen. The recent number of cell phone technology does not change this. If it did, then technology would help criminals but not the police. It follows that Skinner had no expectation of privacy in the context of this case, just as the driver of a getaway car has no expectation of privacy in the particular combination of colors of the car’s paint.
As that Cato post appropriately points out, reasonable expectation of privacy doesn’t mean what the 6th Circuit claims it means:
But it does not follow at all. “What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection,” the Supreme Court explained in the seminal case of Katz v. United States, “But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.” Any member of the public can buy a dog and follow a scent. Any member of the public can view and copy down a license plate number. Any member of the public can view the external paint job of a car. But any member of the public cannot just track the GPS signal of a random cell phone—and if they could, most of us would be extremely wary about carrying cell phones. Unlike all these other examples, GPS tracking as employed here depends crucially on the ability of police to invoke state authority—a seemingly salient distinction the court fails to take any note of.
The decision also makes no mention of US v. Jones, issued by SCOTUS earlier this year, albeit that is a slightly different scenario. More telling, however, is that there is no mention of Kyllo. Further, as Orin Kerr points out, the technical mumbo-jumbo utilized by the Court is ridiculously hazy.
Decisions like these, in light of the fact that it was recently revealed that cell phone companies dealt with 1.3 MILLION requests for cell tower information from LEOs last year and the FBI’s reluctance to turn over new memos giving guidance on how to deal with electronic surveillance in light of Jones, make it an increasingly dangerous time for our privacy in this digital age.
Unless, of course, you’re one of those people who constantly tell the world where they are on Foursquare, Twitter and Facebook. In that case, you get what you deserve.