Legality of Mobile Phone Tracking Still Unclear Despite Supreme Court GPS Decision

By » Wed, January 25 2012

satellite1 Legality of Mobile Phone Tracking Still Unclear Despite Supreme Court GPS Decision

By David Kravets, Wired

The Supreme Court’s blockbuster GPS decision Monday afforded American’s new constitutional privacy protections against warrantless government tracking.

But the justices stopped short of clearly spelling out how wide those rights actually are — or when exactly a warrant would be needed.

The case tested whether the police may secretly attach a GPS device to a vehicle and track its every move without a probable-cause warrant. The judges made it clear that the physical act of putting a tracker on the vehicle constituted a search and that police would be wise to get a proper search warrant, even though the justices didn’t outright say they had to.

But police GPS tracking via cloak-and-dagger methods seems almost quaint given how many of us now voluntarily carry tracking devices — aka mobile phones.

So for many of us a more interesting legal question is, does the government need a warrant to track my location in real time via my mobile phone?

The answer to that question has never been fully resolved by the Supreme Court, mostly because the government prefers the legal uncertainty that lets it track Americans when it wants to without having to prove probable cause to a judge. And the high court’s majority decision Monday gave little guidance on how it might rule on the issue, which is meandering in the lower courts.

That mobile-phone surveillance issue eventually will make its way to the Supreme Court, but perhaps not for years, as the Justice Department is finally appealing a case it had lost, meaning that an appeals court likely will grapple with the issue later this year.

The Obama administration contends that law enforcement has the legal right to get stored locational data and ongoing, real-time tracking information from your cellphone carrier simply by stating that the info is relevant to an investigation. Courts are mixed on whether a warrant based on probable cause is required, and the opinions are rarely seen since these orders mostly show up in sealed proceedings (so as not to tip off people being investigated).

Among other things, the cases hinge on the Obama administration’s position that Americans have no expectation of privacy in their public movements, or in the information they provide to a company providing them services (the so-called Third-Party rule).

In a lone concurring opinion Monday, Justice Sonia Sotomayor suggested it was time do do away with the legal doctrine, stemming from 1976 Supreme Court precedent, that Americans do not have a reasonable expectation of privacy if their information is in a third party’s hands.

“This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks,” Sotomayor wrote.

For the moment, federal investigators often get judges to let them track Americans in real time by simply stating how the information might be relevant to an investigation, when in fact there might be no reasonable suspicion or probable cause at all that the target committed any crime.

“This is a commonly used technique,” Catherine Crump, an American Civil Liberties Union staff attorney, said of the government collecting mobile-phone users’ coordinates. “If this doesn’t happen tens of thousands of times a year, I’d be shocked.”

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