Cellphones

Can Ignorance Protect Your Privacy?

A ruling against warrantless tracking assumes that people don't know how cellphones work.

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Do you know how your cellphone works? If not, it's probably best not to find out. You can lose your constitutional rights that way.

That is the implication of a recent federal appeals court decision that said the government needs a warrant to obtain cellphone location records. While the conclusion is welcome, it can be reconciled with Supreme Court precedents concerning voluntarily disclosed information only by assuming that people do not understand that their cellphones are also tracking devices.

Cellphones have to know where you are in order to work. They are in constant communication with a network of transceivers through the nearest one, and when you make or receive calls the location of that cell site is part of the information retained by your carrier for billing purposes.

Those records are a trove of personal information, since they reveal where you've been throughout the day, every day, for the last year (and possibly longer, depending on your carrier's retention policy). A string of Supreme Court decisions dealing with business records nevertheless suggests that the Fourth Amendment, which bans "unreasonable searches," imposes no restrictions on the government's ability to peruse this information.

That was the conclusion reached by the U.S. Court of Appeals for the 5th Circuit last year. "Cell site data are business records and should be analyzed under that line of Supreme Court precedent," the 5th Circuit said. The Supreme Court has repeatedly held that "a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties."

According to the "third party doctrine," such information has only as much protection as legislators decide to give it. A 2012 investigation by the American Civil Liberties Union found that police often obtain cellphone location data, including real-time tracking as well as records, without a court order of any kind.

Last week the U.S. Court of Appeals for the 11th Circuit ruled that such warrantless surveillance is unconstitutional because "cell site location information is within the subscriber's reasonable expectation of privacy." The case involved a robbery suspect, Quartavious Davis, who was linked to various crime scenes through data obtained from his cellphone company, and the decision hinged on Davis' technological cluelessness.

During Davis' trial, the 11th Circuit noted, a prosecutor conceded that Davis and an accomplice "probably had no idea" they were revealing their whereabouts by using their cellphones. If so, the court said, it hardly seems reasonable to say they voluntarily shared that information.

Instead of being treated like business records, the 11th Circuit said, cellphone location data should be viewed as similar to the information at issue in U.S. v. Jones, the 2012 case in which the Supreme Court ruled that tracking a suspected drug dealer's car by attaching a GPS device to it amounts to a search under the Fourth Amendment. In fact, the appeals court said, obtaining cellphone data is even more intrusive, since cars generally remain in public places, while mobile phones go everywhere.

"The exposure of the cell site location information can convert what would otherwise be a private event into a public one," the court said. "When one's whereabouts are not public, then one may have a reasonable expectation of privacy in those whereabouts….There is a reasonable privacy interest in being near the home of a lover, or a dispensary of medication, or a place of worship, or a house of ill repute." 

The 11th Circuit is right that people reasonably expect to keep such details private, which is why the Supreme Court should reconsider the misguided notion that information shared with anyone is thereby shared with the government. But the appeals court's solution, which relies on the principle that you can't agree to disclose information when you do not realize you are disclosing it, is viable only as long as people remain ignorant of the ways in which their constant electronic companions can betray them. If you have read this column, it's too late for you.

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  1. The Third Party Doctrine has always been, and will always be, bad law. It amounts to “you have no protection against searches because every little thing you do has been shared with someone, somewhere, somewhen, somehow for some reason.”

    1. I assume that under the third party doctrine the cops can search my safety deposit box any time they want too. Is the SCOTUS evil or just stupid?

      1. They can search anything they want, any time they want, and take anything they want. Warrants only matter if they want to use evidence in court.

        But if a cop decides he wants to go through everything you own and take whatever he likes, he can do that. And nothing else will happen. I mean, what are you going to do? Call the cops?

        1. Doesn’t anyone else in this country own a good lime pit? (Looks around startled.) I mean, “Yeah!”

  2. Cellphones have to know where you are in order to work. They are in constant communication with a network of transceivers through the nearest one, and when you make or receive calls the location of that cell site is part of the information retained by your carrier for billing purposes.

    Thanks a lot, Sullum. Now I know how my cellphone works and can’t expect privacy for the records it produces.

    1. Wait, your call phone works? I’ve been carrying around a dead brick because people expect me to have one.

      1. I was too, until yesterday when someone told me I needed to recharge the battery. What, I only bought this thing three years ago and it needs an upgrade already? (See, I can gain extra rights for ignorance too!)
        I’m waiting for the day taking the battery out of your cellphone will be considered evidence of intent to commit a crime.

  3. What part of “effects” are they deliberately choosing not to understand?

    1. *ominous new yawk accent* “You don’t need to fly”

      *chokes, coughs and spuuters*

      How can anyone talk like that?

      1. If it is a New Yorker speaking wouldn’t that be “You don’t need to fucking fly”?

        1. No, only if it was a New Yawker. There is a difference, though in my impression you are correct, I should have used the more colorful verbiage.

          1. And I mixed up threads. We have two search related threads this morning, I must have thought this was the TSA thread.

            1. And here I thought somebody was actually interested in one of my comments. 🙁

  4. “There is a reasonable privacy interest in being near the home of a lover, or a dispensary of medication, or a place of worship, or a house of ill repute.”

    Obviously the solution is to ban possession of cellphones within a “reasonable” distance from any of those places.

    1. More likely leaving your cellphone behind will be considered evidence of intent to commit a crime.

      1. “Your honor, with batteries these days, I have to leave my phone home every other day to get a day’s worth of charge.”

  5. Does this mean that by reading this article we have all waived the ignorance defense?

    1. Well by posting here you definitely have.

  6. Start working at home with Google. It’s a great work at home opportunity. Just work for few hours. I earn up to $100 a day. I can’t believe how easy it was once I tried it out http://www.Fox81.com

  7. As an EE It was too late for me long ago. I do not own a cell phone.

    1. I thought I was the only one left!

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