Kevin Frick
“Can You Track Me Now?…Good.” Do Police Need a Warrant for Cell Phone Location Data?
Last week, the question of whether law enforcement officials required to get a warrant for cell-phone location took a step toward Supreme Court review, as the government appealed a magistrate judge’s denial of an order for such data absent probable cause to the Fifth Circuit. Many privacy organizations, including the ACLU and the Electronic Frontier Foundation, and the National Association of Criminal Defense Lawyers joined in submitting an amicus brief.
Cell phone tracking data as an issue is heating up for a variety of reasons. First and foremost, the prevalence of cell phone use makes the issue palpable for almost every citizen. However, there are some lesser known legal reasons that make the issue a timely one. These include the following:
- Law enforcement increasingly seek such data; judges are increasingly denying access: The first published decision on the issue emerged from Brooklyn in 2005, when Magistrate Judge Orenstein made public his denial of law enforcement’s request of cell phone location data. Since then, many judges have followed his lead.
- It implicates the important “third-party doctrine”: Under the third-party doctrine, information that has been volunteered to a third-party no longer receives Fourth Amendment protection. However, the third-party doctrine has been developed in quite different contexts, like whether police can search garbage put out for collection. Justice Sotomayor has called “ill-suited to the digital age.”
- The effect of the recent U.S. v. Jones on the issue isn’t clear: The majority opinion in Jones decided the case—concerning the installation of a GPS device on a suspect’s car—primarily on the principle of physical trespass, despite a concurrence by Justice Sotomayor recognizing that “physical intrusion is now unnecessary to many forms of surveillance.”
For these reasons and more, the issue of law enforcement collection of cell phone location data is likely that moves quickly and publicly toward Supreme Court review.
Update 4/2/12: Monday, the New York Times highlighted the issue, noting how many local police departments use location tracking data for routine investigations.