Is That a Spy in Your Pocket?

How warrantless cellphone tracking threatens your privacy

In January the Supreme Court unanimously ruled that tracking a suspect's movements by attaching a GPS transmitter to his car counts as a "search" under the Fourth Amendment. But because the majority opinion emphasized the physical intrusion needed to surreptitiously install the transmitter, it did not resolve the constitutional implications of surveillance using cellphones, the tracking devices that Americans voluntarily carry in their pockets and purses.

In the absence of clear guidance, a recent report from the American Civil Liberties Union (ACLU) suggests, law enforcement agencies are making up the rules as they go along, often obtaining location data from cellphone carriers without a warrant even for routine investigations. Last week a House subcommittee considered a bill that would address this threat to privacy by requiring a warrant for geolocational surveillance, regardless of the method used.

While the Supreme Court's decision involved surveillance that required a trespass on the target's property, five justices seemed to agree the real issue was the sensitive information collected by continually tracking his car for 28 days. As the U.S. Court of Appeals for the D.C. Circuit observed in the same case, "A person who knows all of another's travels can deduce whether he is a weekly church goer, a heavy drinker, a regular at the gym, an unfaithful husband, an outpatient receiving medical treatment, an associate of particular individuals or political groups—and not just one such fact about a person, but all such facts."

Cellphone tracking can be even more revealing, since people take their phones everywhere, including private indoor locations. Furthermore, carriers retain location records for months or years, creating a trove of personal data that law enforcement agencies can peruse at will if there is no requirement for judicial authorization.

"There have always been facets of American life that have been uniquely safeguarded from the intrusive interference and observation of government," the ACLU's Catherine Crump told the House Judiciary Committee's Subcommittee on Crime, Terrorism, and Homeland Security last week. "Geolocation surveillance threatens to make even those aspects of life an open book to government."

Crump was testifying in support of the Geolocational Privacy and Surveillance (GPS) Act, a bill introduced by Rep. Jason Chaffetz (R-Utah) that would require the government to obtain a probable-cause warrant before intercepting or demanding geolocation data, except in emergencies and cases involving foreign intelligence. That rule is considerably more protective than the Justice Department's current policy, which is to seek a warrant only for real-time tracking of cellphones using GPS or triangulation (a technique that helps locate a phone within the sector served by the nearest base station).

But as Crump observed, "this is a meaningless distinction," since investigators can convert live tracking into historical records simply by waiting a minute or two before looking at the data. In any case, the Justice Department's rule bizarrely implies that examining six months of location records is somehow less intrusive than tracking a cellphone in real time for a day.

Furthermore, as University of Pennsylvania computer scientist Matt Blaze noted in his testimony on the GPS Act, the sectors served by each cellphone base station are becoming smaller and smaller as carriers strive to keep up with increasing demands on their networks. That means it may be possible to identify a target's specific location without GPS or triangulation, simply by knowing the closest base station, which is information cellphones automatically collect.

While the federal approach to cellphone tracking makes little sense, the ACLU reported last month that local policies "are in a state of chaos, with different towns following different rules—or in some cases, having no rules at all." Examining documents from more than 200 law enforcement agencies, the ACLU found that only a few had a general policy of seeking a warrant for cellphone tracking. Some do warrantless tracking only in life-threatening emergencies, but many do it routinely.

Our privacy deserves more respect. The GPS Act would provide it.

Jacob Sullum is a senior editor at Reason and a nationally syndicated columnist. Follow him on Twitter.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • Whiterun Guard||

    Imperials think us all lawless beasts. Im proof of their ignorance.

  • Jimbo BTR||

    It seems to me that a smart lawyer would see this as an opportunity to sue cellphone service providers for violating their customers 4th amendment rights.

    It would only take one successful class action suit worth multiple millions of dollars to make all service providers do the right thing; namely, DEMAND a warrant before releasing any private information about their customers to any government agency.

    It's what they should have been doing in the first place but, they're just too gutless to "Just Say No" to the government. They need to be made to pay, bigtime, to make them see the folly of their ways.

  • Matrix||

    that depends on what your contract and user agreement with cell providers is. If they own the data, and you agree to them owning the data, they can give it out freely. Gotta read the entire agreement.

  • Almanian...still||

    ^this^

    I love when cops come to my place of bidness to serve a warrant or whatever, and are shocked - SHOCKED! - that we don't allow them entry.

    "Uh, this is private property..." "But we have a summons for so and so..." "Then catch up to them at their house, not mine..."

    I will acknowledge that, on occasion, I have allowed them to wait at the gate while I went and got the fucking puke...I mean, employee....who richly deserved what he was getting. "There's someone to see you at the gate..." Surprise, surprise! It's always fun to watch...

    BUT OTHER THAN THAT (Catbert, Evil HR Director)! Fuck off, slavers...

  • General Butt Naked||

    Dang man, what kind of bidness are you in that you got da poleese tryn to surv warrnts all da thyme?

  • Pound. Head. On. Desk.||

    Just needs to be large.

    One big place near here, they made fighting on the property punishable by immediate dismissal. That made it rarer, but still didn't eliminate it. The part that weirds me out is that it's women doing most of this fighting!

  • Arf?||

    That weirds you out? I'm turned on just hearing about it.

  • Tulpa the White||

    Private companies don't have to respect 4th amendment rights.

  • JoshSN||

    The only people that can violate your 4th Amendment rights are the State, or people who are acting on behalf of the State (certain trained security guards, for example, who are licensed).

    Since no one is forcing you to buy a cellphone, the company has every right to hand over all your data to the government, unless it violates the terms of your contract.

  • BigT||

    A private person searching you might be charged with assault, stalking, or BE. No 4th necessary.

  • Almanian...still||

    You can have my cell phone...right now. I leave it at home. Good luck tracking me.

    "He never leaves his fucking house! The devious BASTARD! How does he do it?"

  • sarcasmic||

    "Whenever I commit violent felonies, I leave my cell phone at home."
    -The Most Interesting Man in the World

  • Rich||

    Perhaps another way to resolve this is to make available to the public the current location of every cellphone.

  • Pound. Head. On. Desk.||

    As long as that includes every cop federal agent, judge, congressman, senator, POTUS, I'm in. Oh, and all the cell company execs too.

  • Ron||

    maybe theres a market here for cellphones without GPS. Thats the libertarian way

  • JoshSN||

    Did you read The Puzzle Palace, by James Bamford?

    There used to be a lot of telegraph messages sent in the United States. The government made sure that the ones who didn't hand over the telegraphs were the ones that didn't survive the competition.

  • cryptarchy||

    I've got a iphone 3g. Would the GPS still track even if I have the location service turned off or does it even matter?

  • Invisible Finger||

    cell tower triangulation instead. Not as accurate, but close enough for government work.

  • ||

    They don't need GPS to track you. Just your proximity to various tower will be enough to track you. So, your option is to turn off the phone.

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