We’ve blogged about the constitutional implications of GPS tracking, which the Supreme Court analyzed in U.S. v. Jones, ___ U.S. ___, 132 S.Ct. 945 (2012). Courts have also begun examining the constitutionality of using a cell phone’s GPS data without a warrant. In August, in U.S. v. Skinner, ___ F.3d ___ (6th Cir.2012) (No. 09-6497; 8-14-12), the Sixth Circuit held that the Drug Enforcement Administration (DEA) acted constitutionally under the Fourth Amendment when it used a drug runner’s cell phone GPS data to establish his location without first obtaining a warrant.
Michael Hoven of JOLT Digest, an online companion to the Harvard Journal of Law & Technology, gives a concise summary of Skinner’s basic facts and outcome:
In 2006, the Drug Enforcement Administration (“DEA”) learned that [Marvin] Skinner planned to pick up a large shipment of marijuana in Tucson, Arizona and got a court order (but not a warrant) that authorized Skinner’s phone company “to release subscriber information, cell site information, GPS real-time location, and ‘ping’ data” for his phone. As Skinner left Tucson, the DEA tracked him “[b]y continuously ‘pinging’” his phone. Two days later, the DEA used GPS data to determine that Skinner had stopped in Abilene, Texas, and a search of his motor home (after a police dog detected drugs) uncovered 1,100 pounds of marijuana. Skinner sought to suppress all evidence from the search of his motor home, but his motion was denied. In holding as it did, the Sixth Circuit reasoned that Skinner’s voluntary use of a phone that emitted data regarding his location deprived him of any reasonable expectation of privacy. The court analogized Skinner’s cell phone signals to the paint on a getaway car or the scent of a fugitive being tracked by dogs; police are not barred from taking advantage of those facts, so they cannot be barred from taking advantage of the “inherent external locatability” of a cell phone. (Citations omitted.)
Joe Palazzolo of the Wall Street Journal Law Blog discusses the main issue and resolution of the case:
The question in the case was whether Mr. Skinner had a reasonable expectation of privacy in the data his phone emitted. It’s a question that several courts are wrestling with. Federal law enforcement authorities, as in this case, say that investigators don’t need search warrants to gather such information. Justice Department lawyers argued in a court brief that “a suspect’s presence in a publicly observable place is not information subject to Fourth Amendment protection.”
Judge John M. Rogers, writing for the majority, agreed:
There is no Fourth Amendment violation because Skinner did not have a reasonable expectation of privacy in the data given off by his voluntarily procured pay-as-you-go cell phone. If a tool used to transport contraband gives off a signal that can be tracked for location, certainly the police can track the signal. The law cannot be that a criminal is entitled to rely on the expected untrackability of his tools. Otherwise, dogs could not be used to track a fugitive if the fugitive did not know that the dog hounds had his scent. A getaway car could not be identified and followed based on the license plate number if the driver reasonably thought he had gotten away unseen. The recent nature of cell phone location technology does not change this. If it did, then technology would help criminals but not the police.
Skinner underscores the importance of the national debate on the limits of law enforcement’s wireless surveillance power. A similar case is pending in the Fifth Circuit, In re Applications of the United States of America for Historical Cell-Site Data, No. 11-20884. That case is set for argument October 1.
Under current federal law, law-enforcement officers can collect cell phone data from wireless providers with impunity. (Check out the Skinner court order here, courtesy of Jake Sommer at ZwillGen and Jennifer Granick of the Center for Internet and Society.) Helen Popkin of NBC News noted some of the privacy concerns that the Skinner decision raises for users of cell phones in general:
Given the ubiquity of cellphones — most of which come with some form of GPS automatically enabled — this latest ruling rings a warning bell among privacy advocates.
“Location data is extraordinarily sensitive. It can reveal where you worship, where your family and friends live, what sort of doctors you visit, and what meetings and activities you attend,” Electronic Frontier Foundation senior staff attorney Marcia Hofmann wrote in a blog post prior to the court’s decision.
“Whether this information is collected by a GPS device or a mobile phone company, the government should only be able to get it with a warrant based on probable cause that’s approved by a judge.”
Some members of Congress also feel that law-enforcement officials abuse this surveillance power and infringe on our right to privacy. Therefore, in an attempt to regulate law-enforcement surveillance of wireless data, Massachusetts congressman Edward Markey introduced the “Wireless Surveillance Act of 2012.” Robinson Meyer of The Atlantic describes two main provisions of the bill:
—apply home search standards to cell phone location requests. Right now, law enforcement forces can request the location of your cell phone (and thus, presumably, you) from your provider without getting a judge’s approval. The bill would require approval.
—account for which officials asked for “emergency” data when. The most frequent reason these kinds of cell phone requests are used, law enforcement officials say, is to solve kidnappings and similar crimes where location and time are of the essence. Markey’s bill attempts to account for these situations by requiring “a signed, sworn statement from law enforcement authorities after receipt of information from a carrier that justifies the need for the emergency access.”
The bill also regulates how long law enforcement can hold onto wireless data and requires law-enforcement agencies to regularly report the extent and reasons for tracking. It remains to be seen whether this bill will pass, but it is clear that the debate about cell phone data privacy is heating up.