By 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 to seizure?
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.