More on GPS Tracking of Cell Phones and the Fourth Amendment

I want to add to the recent discussion I've been having here on the upcoming landmark privacy rights legal battle. The issue at hand is over what the proper legal standard should be when prosecutors demand cell phone location data.

A little case history first: Last April, the Washington Post reported that while serving as a U.S. attorney during the Bush administration, Christopher Christie tracked the whereabouts of citizens through their cell phones without warrants. The ACLU obtained these documents from the Justice Department in an ongoing lawsuit over cell phone tracking. While the documents reveal 79 such cases on or after Sept. 12, 2001, they do not specify how many of the applications were made during Christie's tenure.

Tracking without a warrant disregards an internal U.S. Justice Department recommendation that prosecutors obtain probable cause warrants before gathering location data from cell phones. Of the cases in which probable cause wasn't established, documents showed 19 allowed the most precise tracking available. Those cases occurred after the November 2007 Justice Department recommendation that prosecutors seek warrants.

Documents released by the ACLU have also shown that of the states randomly sampled, New Jersey and Florida used GPS tracking without obtaining probable cause or warrants. Four other states, California, Louisiana, Indiana, Nevada and the District of Columbia reported having obtained GPS data only after showing probable cause.

Those documents were part of the ongoing lawsuit by the ACLU and Electronic Frontier Foundation on how the government tracks cell phone users. As these two privacy protection stalwarts argued in those cases, government tracking without a probable cause or warrant is a violation of the Constitution's Fourth Amendment, which guards against unreasonable search and seizure. Government prosecutors have argued that only a court order showing the tracking data is relevant to a criminal investigation is needed.

And if that wasn't enough, there was last December's revelation that Sprint received 8 million law enforcement requests for GPS location data in just one year.

You can read a host of past posts on this topic, here, here and here.

Now, before I get to two more articles on this case that is going before the 3rd Circuit, I want to re-post the rather hilarious "coverage" of the revelations regarding Sprint from Stephen Colbert on the Colbert Report:

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Now to the Wall Street Journal's take:

But how easy should it be for the FBI or other law enforcement authorities to pull cell-phone data showing a user’s location? Is it enough for authorities to show that it has “reasonable grounds” to believe that the data is “relevant and material to an ongoing investigation?” Or should a higher standard apply? Should a law enforcement have to have “probable cause,” as established by the Fourth Amendment?

The issue is all teed up for argument Friday at the Third Circuit in Philadelphia. Click here for a preview from Proskauer’s Jeff Neuberger, who’s not involved in the case; click here for an op-ed in Thursday’s Philadelphia Inquirer; here for a piece on the case from Newsweek, which has links to filings in the case.

The quick backstory: In late 2007, the United States applied for court permission to obtain information about the location of an individual’s cell phone, without showing probable cause that tracking the individual would turn up evidence of a crime. A magistrate judge denied the government’s request and a district court upheld that decision in September 2008. The government is appealing the ruling in the U.S. Court of Appeals for the Third Circuit. According to Newsweek, the hearing will represent the first time a federal appellate court has hear arguments on the legality of the data-collecting methods.

The Electronic Frontier Foundation, along with the ACLU, are arguing that the Third Circuit should uphold a lower court’s ruling that the higher standard should apply.

Wrote the ACLU’s Catherine Crump, in her Inquirer op-ed:

What’s at stake in the case is not whether it’s OK for the government to track the locations of cell phones; we agree that cell-phone tracking is lawful and appropriate in certain situations. The question is whether the government should first have to show that it has good reason to think such tracking will turn up evidence of a crime.

We believe it should. This case is not about protecting criminals. It’s about protecting innocent people from unjustified violations of their privacy.

Now, let's see what PC World had to say about this landmark case:

The U.S. Department of Justice will argue that it does not need to present a judge with probable cause of a crime to obtain mobile-phone tracking information in a hearing scheduled for Friday in Philadelphia.

The DOJ will argue before the U.S. Court of Appeals for the Third Circuit that it does not need a court-ordered warrant to obtain cell site location information from mobile phone carriers, in an appeal of a magistrate judge's ruling against the agency's effort to get its hands on mobile phone locations records in a drug trafficking investigation.

...

"You've got probably 250 million Americans walking around with tracking devices," said Jim Dempsey, vice president for public policy for the Center for Democracy and Technology (CDT), a digital liberties advocacy group. "The question is, what does it take for the government to turn that on and to secretly track you?"

...

"Does the Constitution apply to these new -- completely unprecedented, really -- technologies?" Dempsey said. "The Justice Department says the Constitution was a horse-and-buggy kind of thing. We say, no, the Constitution was written for the ages, and it should be applied to these new, intrusive capabilities that technology provides to the government."

...

...the cell tower records "provide only a very general indication of a user's whereabouts at certain times in the past," the DOJ said. Because the records do not pinpoint an exact location, they do not constitute an unreasonable privacy invasion prohibited by the Fourth Amendment, the DOJ said. Cell site records do not even indicate a phone's distance from the serving tower, let alone its specific location, the DOJ said.

However, U.S. law enforcement agencies have used cell site information to track suspects, Dempsey said. The cell site information is close enough for law enforcement investigators to infer that a suspect was at home at the time of a phone call or at his workplace, he said. U.S. law enforcement agencies have used cell site information to establish suspects' locations during trials, he noted.

Click here to read more.

Look, I'm a huge fan of the HBO show The Wire - and god knows I was rooting for the cops to get clearance to track a variety of the dealers cell phones. But that's a show, this is the real world that I have to live in. And if I remember correctly, there was some significant probable cause established anyway...as there should be in the here and now too.

What's at stake here is whether it's okay for the government to track the locations of cell phone users without having to demonstrate there's good reason to do so. If we've learned anything post Patriot Act, its that law enforcement and the government do abuse unchecked power, even if only in certain, and rare situations. But to me, that's enough of a reason to require probably cause, period.

As the ACLU points out, "This case is not about protecting criminals. It's about protecting innocent people from unjustified violations of their privacy."