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Location Data is Not Constitutionally Protected

The Obama administration has declared that the American public has no “reasonable expectation of privacy” in cellphone location data, meaning that law enforcement authorities have the authority to obtain documents detailing a person’s movement from wireless carriers without a probable-cause warrant. Citing a 1976 Supreme Court precedent, the administration said that data, including banking records, are “third-party records,” indicating that customers have no right to maintaining their privacy.

The Backstory…

The Obama administration made the argument as it prepares for a re-trial of a previously convicted drug dealer, whose conviction was reversed in January by the Supreme Court, which declared that the government’s use of a GPS tracker on his vehicle was an illegal search.

As the 28 days of vehicle-tracking data were thrown out of court, federal law enforcement authorities now intend to argue that they were legally in the clear, as far as using Antoine Jones’ phone location records without a warrant. The US government now wants to use the records to chronicle where Antoine Jones, the alleged drug dealer, was when he made and received mobile phone calls in 2005.

The administration cited a 1976 Supreme Court precedent, which declared that such personal data (including banking records), were third party records, which meant that customers have “no right to keep it private.” The government argued that they were in the clear for a retrial of a previously convicted drug dealer whose conviction was reversed in January 2012, by the Supreme Court, as it found that the government’s use of a GPS tracker of his vehicle was illegal.

The government believes:

“A customer’s Fourth Amendment rights are not violated when the phone company reveals to the government its own records that were never in the possession of the customer. When a cell phone user transmits a signal to a cell tower for his call to be connected, he thereby assumes the risk that the cell phone provider will create its own internal record of which of the company’s towers handles the call. Thus, it makes no difference if some users have never thought about how their cell phones work; a cell phone user can have no expectation of privacy in cell-site information.”

Critics say…

The American Civil Liberties Union has made the point that the Fourth Amendment provides protections against warrantless cell phone tracking, particularly continuous tracking over prolonged periods of time. The Fourth Amendment protects individuals’ reasonable expectations of privacy, and people will reasonably expect that they will not be subject to this invasive form of surveillance. This is because location data is very sensitive, revealing private facts.

The appeals court commented:

“A person who know all of another’s travels can deduce whether he is a weekly church goer, a heavy drinker, a regular at the gym, an unfaithful husband, an outpatient receiving medical treatment, an associate of particular individuals or political groups – and not just one such fact about a person, but all such facts.”

While this does not say that law enforcement agents never obtain cell phone location data, rather the question is under what circumstances they are permitted to do so. Due to the privacy interests at stake, law enforcement ought to be required to go to a judge and obtain a warrant, which involves providing evidence that they have probable cause to believe that tracking location would reveal evidence of an actual crime.

Numerous police departments get a warrant for cell phone tracking, and it’s arguably the best way to ensure that law enforcement can fulfill its role, whilst also protecting Americans from privacy invasion.

However, the administration pointed out that the high court did make note that the physical act of affixing a GPS device to a vehicle amounts to a search and generally would require a warrant. “But when the government merely compels a third-party service provider to produce routine business records in its custody, no physical intrusion occurs.”

Summary

According to a report early September, US feds declared that mobile phone location data was unfortunately not constitutionally-protected. The Obama administration declared to the US federal court that the public has “no reasonable expectation of privacy,” as far as mobile phone location data is concerned. This means that the authorities may obtain data regarding an individuals’ movements from wireless carriers without a probable-cause warrant.

CIPP Exam Preparation

In preparation for the Certified Information Privacy Professional/ (CIPP/IT ) exam, a privacy professional should be comfortable with topics related to this post, including:

  • PII and contractual information (I.A.c.i.; I.A.c.v.)
  • Location-based services (VI.C.)
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