Last week, we discussed United States v. Jones, the Supreme Court case that addresses the question whether police may place a GPS tracking device on a suspect's vehicle without first obtaining a search warrant.
Some legal observers believe that the decision in Jones may impact a more common, and to many Americans more troubling, practice – the electronic tracking of persons and their locations by cellular telephone companies.
A little technical background is in order.
According to a fascinating article in the Nov. 9 issue of the Wall Street Journal, when cellular phones are turned on, the phones periodically check the signal strength of the nearest tower. When this happens, the carrier (AT&T, Verizon, whoever) knows which cell tower your phone is associated with, and a record of that is generated. In urban areas, where the cell phones are closer together, carriers can pinpoint the phone's location within a few hundred feet. If "micro cell towers" are present, the phone can be located in an individual building or even a certain room. As all this data is accumulated and stored, it becomes a virtual map of the cell phone user’s activities over days, weeks and months.
Law enforcement officers see this tracking information as highly valuable in studying the activities of criminal suspects.
In the last 10 years or so, police have increasingly requested that courts approve
and issue "cell tracking orders" to allow police access to this location tracking data. Studies estimate that federal courts alone issue between 20,000 and 30,000 cell phone tracking orders every year. State courts issue thousands more.
According to the Journal article, whereas search warrants of homes and businesses typically are delivered to the suspect, “most people whose phones are targeted never learn about it. They typically find out only if they are charged with a crime and their tracking data is used as evidence against them."
Governmental authorities seeking access to the data make an argument similar to that asserted in the automobile cases – that a person owning a cell phone does not have a "reasonable expectation" that their whereabouts are not being monitored by their cell phone companies.
More and more judges, however, are refusing to issue the tracking orders without requiring the law enforcement officers to show "probable cause," and seek a formal search warrant. As one federal magistrate said, "Americans do not generally know that a record of their whereabouts is being created whenever they travel about with their cellphones. Most Americans would be appalled by the nation that the government could obtain such a record without at least a neutral, judicial determination of probable cause."
Faced with increasing pressure from the courts, some United States attorneys have agreed to obtain warrants when tracking cell phone location information in cases within their jurisdiction.
The automobile and cell phone tracking cases present complex questions of Constitutional law.
Certainly the rights of individuals to be free from governmental intrusion must be preserved. On the other hand, when easily obtainable information can help catch dangerous criminals it seems foolish to make it overly burdensome for law enforcement officers to obtain it.
The requirement that law enforcement officers obtain a search warrant seems, for now, to strike a reasonable balance of these competing interests. As technology advances – and forms of social media like Facebook become even more entwined in our daily lives – it's likely even more complicated privacy
issues will arise in the future.