BY Susan M. Brazas for Lawyers.com
It’s now easier for government agents to obtain cell phone tracking data. A federal appeals court in Pennsylvania ruled that government agents don't always need a warrant to get cell phone location information from phone companies.
Federal agents in a drug trafficking investigation wanted a phone company to provide information about a customer's cell phone use. The data could be used to pinpoint the locations where phone calls were made and received.
A magistrate judge ruled the agents had to get a warrant supported by probable cause in order to obtain the phone records. To show probable cause, the agents had to provide a strong basis for believing the cell phone records showed evidence of a crime.
The magistrate's opinion was overruled on appeal. The appeals court applied a less rigorous standard to the government's request. It said that the Stored Communications Act only required the government to show that the requested records were important to an ongoing criminal investigation.
Many people remember the cult hit "Invasion of the Body Snatchers" or the black and white sci-fi TV show "The Outer Limits." The eerie feeling the human race might be overtaken by aliens or Big Brother is unsettling.
Now, it may be true that you are being watched…at least by the FBI, thanks to the tracking features found in cell phones. One court is now considering whether this is an invasion of privacy.
The Federal Law Mandating Cell Phone Tracking
A 1986 law authored mainly by Senator Patrick Leahy of Vermont requires cell phones to have a feature called E9-1-1. This feature allows your cell phone provider to pinpoint your location, to within 150 feet, as long as your cell phone is turned on.
The feature works when you make a call from your phone, and the carriers store the information for a limited period of time. In emergency cases this is a great idea especially if the person doesn't know where they are.
Some technology experts warn that if the government were to require it cell phone carriers would have to store your location data for a longer period of time. It wouldn't be impossible for cell phone technology to develop to the point where your location could be tracked even without making calls, or without having your phone turned on.
Senator Leahy said that the Senate Judiciary would revisit the law this year. He admits the law isn't up to date and doesn't correspond with current cell phone technology. The balancing test should be your personal privacy weighed against the need for allowing law enforcement to locate potential public dangers or persons in need of help.
Pennsylvania Court of Appeals
The Third Circuit Court of Appeals, covering the Philadelphia region, is deciding a case involving privacy issues. At the center of the case is an FBI agent who testified that he obtained more than 150 records over the past few years tracking fugitives wanted in connection with federal crimes.
The Court heard oral arguments from the lawyers on both sides of the case this February. Those opposing the tracking include the American Civil Liberties Union (ACLU), who says the practice is a serious invasion of privacy. The other opponent is the Electronic Frontier Foundation.
One of the court's judges challenged the US Department of Justice's lawyer about the implications of the government wanting to know where people are or where they've been.
The Court hasn't made a decision on the case. Sometimes decisions take months depending on the complexity of the case and how urgent it is.
The Right to Privacy and the Fourth Amendment
The constitutional right at issue is set forth in the Fourth Amendment of the Bill of Rights. It's the right of people to be free from unreasonable searches and seizures. Many states have a corresponding right in their own state constitutions.
The right to privacy involved in the cell phone tracking case is related to the Fourth Amendment, but it's not exactly the same. The US Constitution doesn't specifically guarantee a right to privacy.
Some state and federal laws guarantee confidentiality of certain information that is related to the right to privacy. For example, revealing health care or medical condition, mental health treatment, or drug or alcohol treatment, without very clear and specific written permission is strictly forbidden by many state and federal laws.