ACLU Says Police Often Obtain Cellphone Location Data Without Warrants

In U.S. v. Jones, decided in January, the Supreme Court ruled that police need a warrant to track a vehicle by attaching a GPS device to it. But because the decision hinged on the physical intrusion involved in attaching the device, it left unclear what limits the Fourth Amendment imposes on tracking that does not require police to touch the target's property. Now the American Civil Liberties Union, based on documents collected from about 200 law enforcement agencies, reports that police often collect cellphone location data without a court order. While some police departments obtain such data without a warrant only in life-threatening emergencies, some do so routinely, while others let cellphone carriers decide how much legal authorization is necessary. "Law enforcement agencies' tracking policies are in a state of chaos," the ACLU says, "with different towns following different rules —or in some cases, having no rules at all."

Based on the documents obtained by the ACLU, The New York Times reports that police departments in Nevada, North Carolina, and other states "have gotten wireless carriers to track cellphone signals back to cell towers as part of nonemergency investigations to identify all the callers using a particular tower." Thanks to modern technology, a California training manual explains, "subtler and more far-reaching means of invading privacy have become available to the government." According to the Times, a Nevada training manual noted that cellphone tracking "had been 'misused' in some standard investigations to collect information the police did not have the authority to collect." It warned that "continued misuse by law enforcement agencies will undoubtedly backfire." In fact, the Times says, "Many departments try to keep cell tracking secret...because of possible backlash from the public and legal problems." Speaking of which, Reason Contributing Editor Julian Sanchez, a privacy specialist at the Cato Institute, argues that collection of cellphone location data is the controversial surveillance practice that the Obama administration is conducting under its secret interpretation of Section 215 of the PATRIOT Act.

If the legal authority for such warrantless surveillance were clear, law enforcement agencies would not be so shy about admitting that they do not bother to obtain judicial authorization. The Supreme Court has ruled that information about you held by third parties is not covered by the Fourth Amendment (although access to it may be restricted by statute) because you have voluntarily relinquished it. The information about where you are (or were) that cellphone companies have arguably falls into this category. Then again, the logic of Justice Samuel Alito's concurring opinion in U.S. v. Jones—which said collecting information about a person's whereabouts, even in public places, can reveal so much that it constitutes a "search" under the Fourth Amendment—suggests a warrant is required for at least some kinds of cellphone tracking. A better approach, as suggested by Justice Sonia Sotomayor in her concurring opinion, would be to rethink the notion that sharing information with businesses for particular reasons means surrendering all constitutional claims to privacy concerning that information. Rather than count on the Supreme Court, the ACLU is urging statutory restrictions on cellphone tracking by the government.  

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  • shrike||

    Black is beautiful

  • Gerholdt||

    The check is in the mail...

  • ||

    Is there any language in the 4th amendment supportive of the proposition that by merely sharing information with a multinational telecommunication outfit one's 411 is somehow fair game for the pigs?

  • ||

    If the multinational telecom chooses to give your info away I don't see how the 4th is at issue.

    I'm also not totally sure how determining one's location information constitutes a search or seizure at all, let alone an unreasonable one.

  • ||

    "determining one's location information" if nothing else, is a search.

    Where is there an affirmative grant of authority within the US constitution to permit such inquiries?

    Same for any state constitution.

    Sometimes you seem to forget that legislative bodies were not expected to do much - by design as the raitifiers knew full well that people are most free and most prosperous when the busybodies and the rent seekers and the losers that want to model the king's costumes are ostracized and belittled and held in contempt.

  • Colonel_Angus||

    Accessing private phone records is a search. It is a search with permission if a party of the information- likely the service provider- gives the information to the government, but it is still a search.

    If my phone company doesn't want to tell you where my phone says I might be, get a warrant, bitches.

  • ||

    There's really not a particularly good argument that you own the geolocation data that your phone transmits to your wireless service provider. In fact, I strongly bet that the standard contracts for wireless service providers state that they own geolocation information, not the customer, so they can give it to whomever they wish (including law enforcement).

  • ||

    For purposes of not being harassed by the fuzz, yes. There is nothing in the text of the 4th amendment that authorizes the state to be able to access the whereabouts of an individual by way of an ad=hesion contract executed with a multi-national rent seeking parasite.

  • ||

    the 4th amendment generally doesn't authorize the govt. it LIMITs the govt.

    in any search, the question is - does it violate provisions that limit govt. action such as the 4th or the state constitution where the offense is being investigated (assuming it is not federal agents)

    saying the 4th amendment doesn't authorize the state to do x is a ridiculous analysis

    the bill of rights is a limitation on govt. the question is are they limited FROM doing X?

    fwiw, in the 9th circuit, at least as our legal adviser has said - get a warrant. plus our state constitution HAS a right to privacy which the federal one doesn't

    so double protection for privacy

  • shrike||

    Wow, I just caught a bit of this High Pitch Spermy Voice conservative on redneck radio named 'Marc Levin(e)'.

    He is like some fascist Lewis told us about.

  • ||

    ACLU chairman Captain Obvious was unavailable for comment.

  • Almanian||

    or in some cases, having no rules at all

    Libertopia - FINALLY!

  • ||

    A better approach, as suggested by Justice Sonia Sotomayor in her concurring opinion, would be to rethink the notion that sharing information with businesses for particular reasons means surrendering all constitutional claims to privacy concerning that information.

    The Living Constitution: not just for liberals anymore!

    Rethinking notions without regard to the text is what got us into this mess in the first place. Let's not be cafeteria constitutionalists, kay?

  • ||

    No, Tulpa, you give succour to the living constitution doctrine by reading powers into the doc which ain't there.

  • Shorter Reason||

    Cops are bad, mmm-kay?

  • D. Lusional||

    Ur shootin ur dogs!

  • ||

    If you're going to commit a crime go to a convenience store and buy one of the prepaid cheapos, then through it away.

  • ||

    As The Wire taught us, those are referred to as "burners".

  • jasno||

    It's stuff like this that makes me glad to give the ACLU my money.

  • Colonel_Angus||

    The last time I looked in to it, Toyota still releases absolutely no information useful to anyone outside Toyota from data collectors in vehicles of their brand. Toyota is fucking awesome.

  • ||

    we only ping cell phones in emergencies (i've seen it done very very rarely on this basis) or with a warrant (again, rare. we had a multiple incident felon stalker violating orders the whole 9 yards commit 6 different offenses on 6 different days and we still couldn't get the sgt. to let us do a warrant when he violated it... too much overtime to deal with).

    otoh, when people call 911 their location automatically pops up on the dispatch screen and i've arrested a few people that way

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