Police Don’t Need a Warrant to Track Your Cell Phone
The federal Sixth Circuit Court of Appeals ruled last week that police do not need a warrant to track suspects using location data from their cell phones. Mobile phone users, the court said, do not have any expectation of privacy for data that emanates from their phones.
The decision stemmed from a case in 2006 when law enforcement agents intercepted phone communications from a known drug trafficker without a warrant. The information gave them the location and vehicle information for a buy carried out by a courier known as Big Foot. Using information obtained from Big Foot’s pay-as-you-go cell phone, police tracked the path of his RV from Arizona into Texas, then moved in to arrest him after he picked up a shipment of 1,100 pounds of marijuana.
Big Foot, also known as Melvin Skinner, was sentenced to over 19 years in prison. However, he appealed based on the fact that police tracked his phone without a warrant.
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It doesn’t matter, the Sixth Circuit ruled, equating the phone tracking to more familiar methods of catching a crook. “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 opinion reads. “The law cannot be that a criminal is entitled to rely on the expected untrackability of his tools. 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 nature of cell phone location technology does not change this.”
Federal and state laws are still unsettled about exactly when law enforcement needs a warrant to obtain personal cell phone information. As far as location tracking, the United States Supreme Court ruled in February that police must have a warrant to attach a GPS device to a person’s car. Although the decision did not extend to cell phones, a concurring opinion signed by four justices said that it should.
The Sixth Circuit Big Foot ruling takes the opposite tack, reasoning that suspects using phones are circulating in public areas where they might reasonably be observed anyway. “The court rejected Skinner’s argument that the DEA agents never established visual surveillance of his movements, didn’t know his identity, and didn’t know the make or model of the vehicle he was driving,” writes Steven Schwinn, a law professor at the University of Chicago, on the Constitutional Law Prof Blog. “It said that Skinner’s movements could have been observed by any member of the public –and that he therefore had no reasonable expectation of privacy — even if they weren’t actually observed by DEA agents.”
Another professor notes that the court doesn’t fully resolve a distinction between police actively and passively tracing cell location data. “The opinion seems pretty vague on the technological facts,” writes George Washington University Law Professor Orin Kerr on the Volokh Conspiracy law blog. The court’s ruling goes back and forth suggesting that the police used GPS data that the phone automatically transmits to the carrier, and/or “pinged” the phone to find its location.
“The murkiness of the facts are particularly unfortunate because the reasoning of the majority opinion relies heavily on cell phones broadcasting location information as just part of the way that they work,” Kerr writes. “But if pinging the cell phone means actively sending a request to the phone to return its current GPS location, that’s not just how cell phones work: That’s the product of the cell phone provider setting up a mechanism by which the government can manipulate the phone into revealing its location.”
The opinion could be headed to the Supreme Court for a final ruling, but in the meantime anyone who carries a cell phone, criminal or otherwise, is subject to police tracking — without a warrant.
Do you think allowing cops to track your movements without asking a judge for a warrant is an invasion of privacy? Share your opinion by leaving a comment below.