Attorney Timothy Ayer
The U.S. Supreme Court is scheduled to decide an important privacy issue
this term: Can the government track your location by seizing cell phone
location data obtained from your cellular carrier without a warrant?
The government says yes, and proponents of this position offer several
arguments. First, they say it is not a search of the person being investigated
because the documentation is procured from a third party – the cell
phone carriers. They say this information is not private, and a person’s
whereabouts are public information.
But those who oppose the government’s attempt to secure this data
point to the nature of cell phones. They say cell phones have become not
only ubiquitous, but also necessary for a large portion of the population.
They hold and provide access to the universe of the users’ sensitive
personal information. And if the government can get some information from
third parties, where is the limit? Will the location data provide a bootstrap
to argue that emails, texts, phone calls, and passwords are now subject
In making their decision, the Court may be guided by a prior experiment
in this area. In 1928, in a case called Olmstead v. U.S., the Supreme
Court allowed government wiretaps of telephone conversations. Almost 40
years later, in 1967, the Court ended this allowance on the tail end of
four decades of abuse by the government. In Katz v. U.S., the Court found
that the Fourth Amendment, which prohibits unreasonable searches and seizures,
protected against wiretaps of public pay phones. More recently, the Court
has held that a warrant is required to search a cell phone legally seized
during an arrest. The Court may also look to prior cases in which the
government was prevented from using GPS trackers on cars and heat sensors
on the outside walls of homes.
While this case works through the Court and spends the next several years
being interpreted and refined by lower courts, cell phone users need to
know what to do when faced with this issue.
First, review any agreements you may sign with cell phone companies. Do
they specifically address this issue? And if, so, how? Does the company
assure you that it will work to protect your data? Second, if you are
asked to provide data or access to data by the government, ask does the
government or law enforcement have a warrant or subpoena?
Technology is developing at a rapid pace, and the law is trying to keep
up, but it is constantly changing. And each jurisdiction will handle the
issues in its own way. If this issue arises in your life, you should contact
an attorney for guidance. An attorney can help you navigate the conversations
that may occur with the government or your cell phone carrier and help
you assert your rights.