Warrantless Cell Phone Tracking Is Un-Constitutional, Federal Judge Finds

From ACLU:

Warrantless Cell Phone Tracking Unconstitutional, Federal Judge Finds




In August, a New York federal court found that law enforcement agents are constitutionally obligated to get a warrant based on probable cause before obtaining historical cell phone location information. And in September, the 3rd Circuit Court of Appeals held that judges may order the government to get a warrant for cell phone location information based on probable cause. However, the 3rd Circuit also held that judges are not obligated to require probable cause and cautioned that they should only require the government to meet this high standard on rare occasions.



Now, another court has joined the fray. In a detailed opinion citing documents obtained through litigation by the ACLU and Electronic Frontier Foundation, Judge Stephen Smith of the Southern District of Texas held that "warrantless disclosure of cell site data violates the Fourth Amendment."



A few aspects of the opinion are worth noting:





According to Judge Smith, "the Government seeks continuous location data to track the target phone over a two month period, whether the phone was in active use or not." This is notable because the cell tracking applications we have seen previously only sought location information for those moments when an individual actually made a phone call. The government is now asking for a great deal more information, and consequently, its requests are now more invasive than we previously thought.

Cell tracking information has grown to be more accurate over time. In fact, it is because of these "refinements in location-based technology" that Judge Smith concludes that requests for cell tracking information trigger the Fourth Amendment's warrant requirement.

The Fourth Amendment requires the government to get a warrant and show probable cause to obtain historical cell tracking information. The court reached this conclusion both because cell tracking reveals information about constitutionally protected spaces, such as the home, and because the prolonged nature of such surveillance is very invasive.

The ACLU agrees with Judge Smith that the government should be required to obtain a warrant and show probable cause before obtaining cell tracking information. As powerful new technologies enhance the ability of government agents to track our every move, it becomes all the more important that the courts hold the government to a rigorous standard it's able to access such sensitive information.