A federal judge recently ruled that if someone has their cell phone turned on, their location data does not deserve protection under the Fourth Amendment, meaning law enforcement can track individuals without a search warrant.<\/p>\n
New York magistrate judge Gary Brown decided in favor of Drug
\nEnforcement Administration (DEA) agents who were seeking his
\napproval over a warrant on a doctor who they suspected was being
\npaid for issuing thousands of prescriptions. The warrant would have
\ncompelled the physician\u2019s phone company to provide real-time
\ntracking data from his cell.\u00a0<\/p>\n
Brown, certainly to the delight of police, issued a 30-page
\nbrief outlining his opinion that, by carrying a cell phone, someone
\nis essentially waiving their Fourth Amendment right to due
\nprocess.\u00a0<\/p>\n
\u201cGiven the ubiquity and celebrity of geolocation
\ntechnologies, an individual has no legitimate expectation of
\nprivacy in the prospective of a cellular telephone where that
\nindividual has failed to protect his privacy by taking the simple
\nexpedient of powering it off<\/i>,\u201d Brown wrote.\u00a0<\/p>\n
\u201cAs to control by the user, all of the known tracking
\ntechnologies may be defeated by merely turning off the phone.
\nIndeed \u2014 excluding apathy or inattention \u2014 the only reason that
\nusers leave cell phones turned on is so that the device can be
\nlocated to receive calls. Conversely, individuals who do not want
\nto be disturbed by unwanted telephone calls at a particular time or
\nplace simply turn their phones off, knowing that they cannot be
\nlocated<\/i>.\u201d\u00a0<\/p>\n
He goes on to suggest that because there are smartphone
\napplications available that allow users to locate people in their
\narea with similar interests, cell phone customers should not expect
\ntheir inherent right to privacy to be observed.\u00a0<\/p>\n
\u201cGiven the notoriety surrounding the disclosure of
\ngeolocation data to retailers purveying soap powder and blue jeans
\nto mall shoppers, the police searching for David Pogue\u2019s iPhone
\nand, most alarmingly, the creators and users of the Girls Around
\nYou app, cell phone users cannot realistically entertain the notion
\nthat such information would (or should) be withheld from federal
\nlaw enforcement agents searching for a fugitive<\/i>.\u201d\u00a0<\/p>\n
The American Civil Liberties Union (ACLU) has long been a voice
\nfor the American people against governmental overreach and
\ntechnological surveillance. Chris Soghoian, a principal
\ntechnologist and senior policy analyst at the ACLU, wrote that
\nBrown\u2019s opinion was \u201cridiculous<\/i>.\u201d<\/p>\n
\u00a0\u201cThere is a big difference between location information
\nyou knowingly share with a select group of friends (or, in fact,
\nthe world) and information collected about you without your
\nknowledge or consent<\/i>,\u201d he wrote.\u00a0<\/p>\n
Exactly how common this practice is throughout the law
\nenforcement community is unclear but it has widely been reported
\nthat a Michigan police force tried to gain information about every
\nsingle cell phone within the proximity of a labor
\nprotest.\u00a0<\/p>\n
Congressional leaders are currently considering two laws that
\nwould address how freely police are able to bug citizens. During an
\nApril hearing on Capitol Hill one detective told Senators that
\nwarrantless geolocation tracking is \u201cessential to obtain in the
\nearly stages of investigations when probable cause has not yet been
\nestablished<\/i>.\u201d\u00a0<\/p>\n
That attitude, and the wide potential for abuse this kind of law
\ncreates, has the ACLU alarmed. \u00a0<\/p>\n
\u201cSomeone might be happy to share their location with a few
\nfriends by \u2018checking in\u2019 using Foursquare while at a music
\nfestival, but not want law enforcement to access that same
\ninformation<\/i>,\u201d Soghoian continued. \u201cAnd, they would still
\nreasonably expect that their location a week later at an Alcoholics
\nAnonymous meeting or abortion clinic should remain private. Sharing
\nlocation data isn\u2019t and shouldn\u2019t be all or nothing<\/i>.\u201d<\/p>\n