Allowing The Feds To Track Your Cell Phone Without A Warrant? Hell, No!

I am sympathetic to police, FBI, and law enforcement in general. Moreover, I think our system is geared too heavily towards protecting the guilty and shielding the innocent.

That being said, I think Americans should be concerned about the government using technology to spy on people who haven’t necessarily done anything wrong. That’s one of the reasons I’m extremely dubious of Britain’s 1984 style government style cameras filming everything their citizenry does in public.

Of course, there can be a fine line sometimes. Is it wrong for the government to listen to overseas calls being made to members of terrorist organizations? Some people would call that an “unreasonable search.” On the other hand, I’d call it a VERY reasonable search. So, even if you’re concerned about these issues, there can be a fine line.

That brings us to this story: “Feds push for tracking cell phones“.

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Even though police are tapping into the locations of mobile phones thousands of times a year, the legal ground rules remain unclear, and federal privacy laws written a generation ago are ambiguous at best. On Friday, the first federal appeals court to consider the topic will hear oral arguments (PDF) in a case that could establish new standards for locating wireless devices.

In that case, the Obama administration has argued that warrantless tracking is permitted because Americans enjoy no “reasonable expectation of privacy” in their–or at least their cell phones’–whereabouts. U.S. Department of Justice lawyers say that “a customer’s Fourth Amendment rights are not violated when the phone company reveals to the government its own records” that show where a mobile device placed and received calls.

Those claims have alarmed the ACLU and other civil liberties groups, which have opposed the Justice Department’s request and plan to tell the U.S. Third Circuit Court of Appeals in Philadelphia that Americans’ privacy deserves more protection and judicial oversight than what the administration has proposed.

…Whether state and federal police have been paying attention to Hollywood, or whether it was the other way around, cell phone tracking has become a regular feature in criminal investigations. It comes in two forms: police obtaining retrospective data kept by mobile providers for their own billing purposes that may not be very detailed, or prospective data that reveals the minute-by-minute location of a handset or mobile device.
Obtaining location details is now “commonplace,” says Al Gidari, a partner in the Seattle offices of Perkins Coie who represents wireless carriers. “It’s in every pen register order these days.”

…In the case that’s before the Third Circuit on Friday, the Bureau of Alcohol, Tobacco, Firearms and Explosives, or ATF, said it needed historical (meaning stored, not future) phone location information because a set of suspects “use their wireless telephones to arrange meetings and transactions in furtherance of their drug trafficking activities.”
U.S. Magistrate Judge Lisa Lenihan in Pennsylvania denied the Justice Department’s attempt to obtain stored location data without a search warrant; prosecutors had invoked a different legal procedure. Lenihan’s ruling, in effect, would require police to obtain a search warrant based on probable cause–a more privacy-protective standard.

Lenihan’s opinion (PDF)–which, in an unusual show of solidarity, was signed by four other magistrate judges–noted that location information can reveal sensitive information such as health treatments, financial difficulties, marital counseling, and extra-marital affairs.

Now, would it be useful for the Feds to be able to quickly and easily determine your location just by making a phone call to a cell company? Sure.

However, it seems to me to be a pretty clear violation of our 4th amendment rights to allow them to do so without getting a warrant. Moreover, their excuse for getting around that — you have “no ‘reasonable expectation of privacy’ in their–or at least their cell phones’–whereabouts” is a non sequitur. It’s completely ridiculous on its face. At the moment, you have every “reasonable expectation of privacy” about your whereabouts if you’re just carrying a cell phone.

Again, I’m sympathetic to law enforcement, but if they want cell phone companies to give up your location, they should have to get permission from a judge. I know that may be inconvenient for them, but we shouldn’t abridge our constitutional rights just to make life more convenient for the feds.

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