As we discussed in last month’s post, the evolution of cell phone technology has presented numerous challenges to our law enforcement and court systems recently. Many laws that were made or amended before this explosion of technology are being closely looked at again, and it seems that almost everyone is scrambling to make changes to account for the detailed information that can now be rather easily obtained.
While last month we looked at authority rights to access information stored on your cell phone, this month we’ll turn our sights to location information that authorities can access and if they need a warrant to do so. To back up a bit, recent technology makes it possible for anyone with a cell phone to be tracked. As long as the phone is on and is being carried by the individual, records are out there tracing every single step they take. In a society where we pride ourselves on our freedom and being able to go where we want, when we want, this can seem very frightening. It also poses a number of challenges to our legal system. If an individual is suspected of a crime, and it’s feasible that authorities can simply access geographical data to see if that individual was in the neighborhood of the crime, it can be argued that this information should be used. However, on the flip side, where is the line drawn? Does an individual need to be accused of a federal crime for it to be used? Must he/she be arrested for the crime before access can be granted? What will stop authorities from tracking ALL of us, regardless of whether we’re accused of a crime or not? You can see how this line of reasoning can quickly get out of hand.
The courts are also struggling, as illustrated by many flip-flopping rulings on cases such as this. Recently, a case decided by the US Court of Appeals for the Fourth Circuit of Virginia ruled that police don’t need a warrant to obtain mobile phone location data for a criminal investigation. The ruling was based upon the idea that cell phone owners voluntarily give their location to their cell phone provider and other apps and are thus have waived their constitutionally protected right to be free from “unreasonable searches and seizures.” Previously, the Fourth Circuit had ruled in Graham v. U.S. that gathering such information without a warrant violates the “reasonable expectation of privacy” to which Americans are entitled. At this point in time, there is a not a clear statute that attorneys or judges can fall back on to make decisions on cases such as these. In fact, it could be years before any semblance of a consensus is made on gathering cell-based location information. And by that time, it’s likely that technology will have taken another leap forward.
What does this mean to you, the citizen? What are your rights if a law enforcement official wants to access your whereabouts via cell phone location records? The best answer to this is that, if you are put into this situation, you should retain legal counsel. Do not grant anyone access to your cell phone or give consent to have geographic records gathered until you have spoken with an expert who can review your case and give you informed advice. Rest assured, I will be keeping a close eye on the most recent case rulings to determine how this rapidly changing legal landscape may impact those I represent.