Judge: Warrant required for cell phone location data, mentions Orwell's 1984

Most Americans have a cell phone on them or nearby at all times and are concerned with the legality of cell phone location tracking. The courts have wobbled back and forth on Fourth Amendment rulings that decide if the government needs a warrant in order to access records that reveal a user's cell phone location. It has been argued that when users have their mobile phone turned on, they choose to waive their expectation of privacy by 'voluntarily' transmitting their location. On Monday, there was a big win for the Fourth Amendment when Judge Nicholas Garaufis of the Eastern District of New York stood up for the Constitution and ruled that law enforcement must establish probable cause to secure a warrant before cell phone providers can be made to hand over location history.


The federal government had asked the court to order Verizon Wireless to turn over 113 days of location data about a suspect's phone. Judge Garaufis wrote that because we have our phones handy at all time, "our physical movements are being monitored and recorded, and once the Government can make a showing of less-than-probable-cause, it may obtain these records of our movements, study the map our lives, and learn the many things we reveal about ourselves through our physical presence." In fact he called it 'fiction' — the idea that most Americans consent to warrantless government tracking and access to their location history by 'choosing' to carry a phone.

Judge Garaufis wrote, "the collection of cell-site-location records effectively enables 'mass' or 'wholesale' electronic surveillance, and raises greater Fourth Amendment concerns than a single electronically surveilled car trip." He added that this "level of Governmental intrusion" was "previously inconceivable," so the Fourth Amendment doctrine needs "to evolve to meet these changes."

And then Judge Garaufis even referenced George Orwell's 1984. In the conclusion, he wrote:

While the government's monitoring of our thoughts may be the archetypical Orwellian intrusion, the government's surveillance of our movements of a considerable time period through new technologies, such as the collection of cell-site-location records, without the protections of the Fourth Amendment, puts our country far closer to Oceania than our Constitution permits. It is time that the courts begin to address whether revolutionary changes in technology require change to existing Fourth Amendment doctrine.

Also on Monday, California unanimously passed a cell phone privacy bill that would require law enforcement to secure a warrant before searching the contents of a cell phone. The bill still needs to be approved by the senate before it goes before the governor to possibly be signed into law.

While the police opposed the bill because there are times when stopping to get a warrant is not 'practical,' there are exceptions when law enforcement can search a smartphone without a warrant. SFGate reported, "police will be able to search a phone without a warrant if they believe they need to do so to prevent injuries, stop the destruction of evidence or prevent a crime from occurring."

Sen. Mark Leno, the bill's author, said, "If you are caught with a laptop, they need a warrant. If they come to your home for some reason, they can't walk into your bedroom, personal office or look at your computer without a warrant. Everything inside your phone requires a warrant wherever else it can be found, so why should the smart phone be different?"

The Supreme Court will soon decide about the constitutionality of warrantless GPS tracking, but in the clash of the Fourth Amendment, technology and law enforcement surveillance, there was another recent "win" for privacy. The police had a suspect's mobile phone number but not his location. The Baltimore Sun reported that Maryland U.S. District Judge Susan Gauvey "refused to issue a warrant sought by federal authorities to find a suspect through his cellphone's GPS data, saying the government was trying to use technology in a new way - 'not to collect evidence of a crime, but solely to locate a charged defendant'."

Copyright © 2011 IDG Communications, Inc.

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