Can the Government Track You Through Technology Without Warrant?

by MrMilesYoung on September 29, 2013

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Recently, there’s been a lot of talk about personal privacy, government limits, and personal technology. News continues to come out about the government tracking individuals’ locations through GPS tracking devices and personal cell phones. The Fourth Amendment comes into question to whether these actions are lawful. A Supreme Court Ruling on GPS tracking, and a recent ruling on Government cell phone tracking offer some insight into personal privacy.

Supreme Court Ruling on GPS Tracking

GPS tells the story

Image via Flickr daveynin

United States vs. Antoine Jones (No. 10-1259)

The U.S. Supreme Court heard a case involving location tracking, specifically GPS tracking, on Nov. 8, 2011. In Sept. of 2005, FBI and D.C. police attached a hidden GPS device to the vehicle of suspected drug dealer, Antoine Jones. They attached it to his car in a public parking lot after obtaining a warrant to track the car. However, the agent installed the device the day after the expiration of the warrant’s time period and in a different state (Maryland) than the warrant was issued for.

Nonetheless, the device recorded and transmitted the vehicle’s movements for 28 days. Data showed Jones made frequent visits to a suspected stash house and Jones was charged with conspiring to distribute narcotics. After being charged, Jones’ case went to the Supreme Court, questioning the legality of the obtained data as violation of the Fourth Amendment.

The D.C. Circuit reversed Jones’ conviction, concluding that admission of the evidence obtained by warrantless use of the GPS device violated the Fourth Amendment. However, the government’s attachment of the GPS device to the vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a search under the Fourth Amendment if a warrant is obtained.

This case brought about the constitutional privacy rights of American citizens in the face of modern tracking systems based on GPS and other technologies. Because many smartphones use GPS tracking systems, the question is whether tacking smartphones is a violation of the Fourth Amendment.

Federal Appeals Court Ruling on the Legality of Warrantless Cell Phone Tracking

Placing a GPS tracking system on a vehicle with a warrant is legal under search of the Fourth Amendment. So, the next question is if the government needs a warrant to track cell phones.

Recently, in July of 2013, the Federal Appeals Court Ruled that the government can track your cell phone without a warrant. The Fifth Circuit Court of Appeals obtains that individuals have no reasonable expectation of privacy over their location data. They conclude this, because historical cell phone location records are the business records of cell phone companies. Therefore, individuals can have no reasonable expectation of privacy in them and thus, no Fourth Amendment protections.

The Fifth Circuit said, “[C]ell site information is clearly a business record. The cell service provider collects and stores historical cell site data for its own business purposes . . . the government merely comes in after the fact and asks a provider to turn over records the provider has already created.”

They are depending on the third-party doctrine, which states that the information an individual discloses to a business like credit card transactions, phone records, etc., does not carry a “reasonable expectation of privacy” with it under the Fourth Amendment. Instead, one has “assumed the risk” that this information might be disclosed at some point. This doctrine has increasingly expanded the government’s surveillance powers including technologies like cell phones, computers, and tablets.

The Fourth Amendment

The Fourth Amendment states the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probably cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

This amendment protects U.S. citizens against unreasonable or unauthorized searches and seizures. It establishes a privacy interest for citizens, and it states that no warrant may be issued to a law enforcement officer unless that warrant describes “the placed to be searched, and the persons or things to be seized.”

With this amendment in mind, it is easy to see how warrantless cell phone tracking seems unlawful. The third-party doctrine loop-hole allows a dip into personal privacy. With the United States vs. Antoine Jones case, it opens-up ambiguity for probable cause to obtain the warrant. Both rulings weaken privacy laws as technology becomes more prevalent.

Do these rulings seems lawful to you? Do you feel comfortable assuming the risk that your private information can be used by businesses and the government to track you?



Miles Young is a freelance writer, world traveler and tech geek.

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