Do Police Need a Warrant to Track Your Cell Phone?

Posted April 11, 2013 in Government Your Personal Rights by

Satellite dish

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Can police track your location via your cell phone without so much as obtaining a warrant? The answer, for now, is maybe.

At issue is the practice of pinging a phone through the service carrier to create a real-time GPS or triangulation data point that law enforcement can use to figure out the phone’s location.

A ruling issued in March by the 10th U.S. Circuit Court of Appeals declared that the judges would “assume without deciding that pinging is a search.” Hence, police need a warrant before they ping.

However, last year the 6th Circuit ruled that warrantless pinging is in fact A-OK. “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 states.

Bringing no clarity to the issue, the 3rd Circuit ruled in 2010 that judges could require warrants from police to get phone GPS data, but don’t have to, at their discretion.

President Obama’s Department of Justice has weighed in as well, arguing in a brief to the 5th Circuit that warrants should not be required because location information is ”voluntarily conveyed” by the phone user.

For now, law enforcement is enjoying what is effectively a Wild West of data collection: In 2011, police requested a staggering 1.3 million cell phone records from carriers.

 

No Expectation of Privacy

Attorney John T. Floyd headshot

John T. Floyd

People might be surprised that their every movement can be tracked with no warrant. “The courts are making their decisions about what expectations of privacy are, and they seem to be doing it in a vacuum,” says John T. Floyd, a criminal defense attorney in Houston. “I would think most people would believe that they have an expectation of privacy in where they go, when they go there, and just their general whereabouts when they are not conducting any criminal activity. But there’s a fairly strong argument coming from the government that that’s just not the case.”

Part of the issue is that judges have been reluctant to issue broad, sweeping rulings that provide a road map on what does and does not legally count as a search. “The cases that are coming out involving privacy concerns are tending to be very fact-specific,” Floyd says. ”There’s no real broad set of guiding principles coming out of these cases.”

Both the 6th and 10th Circuit rulings came from drug arrests. Although the 10th Circuit assumed that pinging is a search, they upheld the conviction of a defendant who was tracked by phone anyway, reasoning that a warrant that police had obtained for other means of investigation that did not specifically mention pinging would suffice.

 

Supreme Court Next?

The split circuit interpretations make the pinging issue a natural one to come in front of the U.S. Supreme Court for a final ruling sometime in the near future. Some of the justices have already weighed in on the issue, after a fashion. Last year in a unanimous decision ruling that police can’t use a GPS tracker on somebody’s car without a warrant, four justices signed off on a concurring opinion that the ruling should extend to tracking phone GPS, as well.

With 80 percent of the necessary votes already on board with the notion that people do have a reasonable expectation of privacy when it comes to their phones, whatever case does make it in front of the Supreme Court could very well be a victory for privacy. However, the accelerating nature of technological innovation means that broader questions of how police interactions with devices that collect and transmit extraordinary amounts of personal information jibe with the Fourth Amendment could remain perpetually unresolved as courts struggle to keep pace.

“There is extreme tension right now between developing technology and the law’s ability to keep up with it,” Floyd says. “We have criminal cases coming up every day where the case law and the latest technology being used gives no guidance to the trial courts. It’s a very interesting time.”

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