Own a Cell-Phone? Be Prepared to be Tracked

[mekagiannis]

When you make a call on your cell phone, just how much privacy should you expect to enjoy?  More importantly, does owning a cell phone give the government the right to track your whereabouts, even if it hasn't shown probable cause to believe it will turn up evidence of a crime?  According to the Department of Justice, the answer to the second question is quite clearly yes.

In a case pending before the 3rd Circuit Court of Appeals the Justice Department argues that it need only show "reasonable grounds" to believe that cell phone records are "relevant and material to an ongoing criminal investigation" in order to access them.  The issue illustrates a clash between federal criminal statutes, in this case the Stored Communications Act, and the Fourth Amendment.  Privacy and civil rights advocates are closely watching the case as one that could set the standard for understanding the extent of individual privacy rights in the digital age. 

The issue is not whether or not the government is entitled to cell phone location data, but rather, what legal showing the government must make before getting that information.  In this case federal prosecutors had made a request for cell phone location data in connection with an ongoing investigation into a larger-scale narcotics trafficking and other violent crime.  The location data was necessary, the government argued, because one of the targets of the investigation had used different vehicles and properties to conduct a variety of illegal activities making traditional physical surveillance difficult.

But the lower court had ruled that citizens maintain a reasonable expectation of privacy in those records and use of their cell phone does not suspend that expectation.  So, just like any other search, before the government can access that information it must meet the standard Fourth Amendment probable cause showing.  The government disagreed and appealed the ruling, arguing that it need only meet the lower reasonableness standard.

There is no question that the ability to find, or in the case of the government, track, individuals has come in handy.  And in some cases, cell-phone tracking is entirely lawful and appropriate.  But by suggesting that simply carrying a cell phone makes a person more susceptible to government surveillance the government is putting ordinary citizens in the unfortunate position of having to chose between carrying a cell phone and protecting their everyday whereabouts from the government.

The problem with this case, and similar cases seeking to avoid constitutional privacy protections, is that there is simply no way to protect innocent civilians from unnecessary privacy violations, a problem squarely addressed in the Bill of Rights.  Each intrusion. like the one currently contemplated, erodes our guarantees of individual liberty and grants far more power to the government than intended.  And worst of all, no one is safer as a result.