Yes, That Is a Spy in Your Pocket: Federal Appeals Court Approves Warrantless Cellphone Tracking

On Tuesday a federal appeals court
ruled that police do not need a warrant to obtain historical
location data from cellphone companies because the Fourth Amendment
does not protect such information. The U.S. Court of Appeals for
the 5th Circuit concluded that the Supreme Court’s “third party
doctrine,” which holds that people have no reasonable expectation
of privacy in information they voluntarily disclose to others,
applies to cellphone geolocation data, despite the wealth of
personal details they can reveal. That means such records have only
as much protection as Congress or state legislatures choose to
provide. The 5th Circuit’s decision comes less than two weeks after
the New Jersey Supreme Court
ruled, based on the privacy clause of that state’s
constitution, that police generally do need a warrant to obtain
cellphone location data. This is the first time a federal
appeals court has squarely addressed the issue.

Under the Stored Communications Act, law enforcement agencies
can obtain court orders requiring production of cellphone records
based on “specific and articulable facts showing that there are
reasonable grounds to believe” the records are “relevant and
material to an ongoing criminal investigation.” Under the Fourth
Amendment, the standard for a search warrant is stricter: “probable
cause” to believe that evidence of a crime will be discovered. The
case heard by the 5th Circuit involved two applications for court
orders covering two months of cellphone location information for
specific customers. The court was asked to decide whether the
“specific and articulable facts” standard is constitutionally
deficient.

No, it is not, the court decided, because the Fourth Amendment
does not apply to cellphone location data, which are just another
example of the “business records” that the Supreme Court has said
can be perused by the government at will in the absence of
statutory restrictions. After all, the court reasoned, people
should know by now that connecting their wireless calls requires
transmitting their locations to their cellphone companies. Since no
one is forced to use a cellphone, anyone who chooses
to do so is voluntarily disclosing his whereabouts to a third
party, thereby losing any reasonable expectation of privacy in that
information.

According to this logic, people are not allowed to share
information with others for limited purposes and still retain
Fourth Amendment protection against government snooping. It’s all
or nothing. Buy a cellphone, and you automatically consent to
having the government track your every move (except when prohibited
by statute). You cannot opt out. And once this line of reasoning
catches on, it will become a self-fulfilling prophecy, since people
living under a government that has such broad surveillance powers
cannot reasonably expect that their comings and goings will remain
private.

The 5th Circuit’s decision sits uneasily with
U.S. v. Jones, the 2012 decision in which the Supreme
Court said police need a warrant to track a car by attaching a GPS
device to it. Although the majority opinion in
Jones hinged on the physical intrusion required to
install the device, five justices expressed the view that the
breadth of information generated by tracking someone’s car for a
month was enough to trigger Fourth Amendment protection. If you
have a reasonable expectation of privacy in the whereabouts of your
car for the last month, surely you have a reasonable expectation of
privacy in the whereabouts of your cellphone for the last two
months. The 5th Circuit declined to draw that inference:

[Supreme Court] precedent, as it now stands, does not recognize
a situation where a conventional order for a third party’s
voluntarily created business records transforms into a Fourth
Amendment search or seizure when the records cover more than some
specified time period or shed light on a target’s activities in an
area traditionally protected from governmental intrusion. We
decline to create a new rule to hold that Congress’s balancing of
privacy and safety is unconstitutional.

Justice Sonia Sotomayor’s
concurring opinion in Jones, calling upon her
colleagues to reconsider the always questionable and increasingly
alarming third party doctrine, is looking more perceptive every
day. That doctrine makes not just cellphone location data but all
sorts of remotely stored information, which nowadays includes a
tremendous amount of sensitive material,
vulnerable to government snooping unless legislators decide
otherwise.

You can read the 5th Circuit’s ruling
here. Ron Bailey
pondered the surveillance potential of cellphones in the
January issue of Reason. Last year I
asked, “Is That a Spy in Your Pocket?”