In a benchmark ruling earlier this week, the United States Appellate Court for the Fifth Circuit expressly stated that federal authorities and agents have the legal power to track the movements of cellphone users without a warrant. Their flawed decision has set a very alarming and perilous precedent, opening the floodgates to what will be the biggest threat to our basic civil liberties in the 21st century.
The decision allows for the warrantless access to cell phone location records for law enforcement officials. The court concluded that since "cell site data are business records," the Fourth Amendment offers no protection to the individual from government inspection of cellular location data.
The case affirmed the concerns of many Americans and global privacy rights advocates about government infringement into individual's personal spheres, as the decision supports the National Security Agency’s (NSA) indiscriminate collection of metadata: they both incorporate the collection of "business records."
The debate over the constitutionality of these privacy rights has intensified over the past few weeks following New Jersey's Supreme Court ruling that mandates police in the state obtain warrants before accessing tracking information from cellular companies.
Some states have refused to wait for the courts' rulings on these issues and have passed legislation demanding warrants for the collection of this data. Montana was the first to sign into law the obtainment of a warrant as a prerequisite for amassing user cellphone data and California, Maine, Massachusetts, and Texas are seeking similar legislation.
While some legislators are working to proactively combat warrantless government surveillance, there are still many constitutional questions not adequately addressed by the Fifth Circuit Court and even more questions raised by its ruling.
Over the past century, the Supreme Court has molded a more complex and comprehensive definition of the Fourth Amendment. Changing circumstances required the court's adaptability and time has proved the ever-present relevance of the Amendments.
The evolution of the interpretation of the Fourth Amendment has caused it to expand its coverage to immaterial possessions. Physical intrusion is no longer necessary to violate an individual's rights — which include abstract personal security, liberty, and communications.
As long as a person has a "reasonable expectation of privacy" in any given scenario — and society demonstrates a willingness to accept it as sensible — then any intrusion on this privacy is considered a "search." If there is no warrant justifying this "search," than the breach of privacy becomes unconstitutional.
Just last year, the Supreme Court issued a significant ruling in United States v. Jones, where police investigators installed a tracking device on Antoine Jones's vehicle and monitored its movement for a month. The Court ruled that the installation constituted a "search" and violated Jones's "reasonable expectations of privacy."
So how should we apply this understanding of the Fourth Amendment to the Fifth Circuit's recent ruling?
The reasoning behind the Court's conclusion in 2012 that "reasonable expectations of privacy were violated by the long-term monitoring of the movements of the vehicle [Jones] drove" applies to a greater degree to cell phone tracking. Every time a cell phone receives or sends data to a cell tower, the wireless provider logs the location of the phone during that exchange. With the advent and popularity of smart phones, cellular devices are constantly communicating with satellites and that information is traced as people carry their phones around with them wherever they go. Based on the Supreme Court's ruling that 28 days of GPS-targeted tracking of Jones's vehicle was a violation of his reasonable "expectation of privacy," there should be no doubt that the ability for the government to look at historical records and track the direct movements of a targeted individual for upwards of a couple of hundred days is unconstitutional.
The Appellate Court justified this violation by claiming law enforcement officials are only collecting "businesses records" and that the Fourth Amendment does not protect these records. In addition to the fact that user data is not a "businesses record," this thinking promotes the false dichotomy that an individual can either knowingly surrender their location information to telecommunication companies when they use a cellular device or can choose to protect that information and not use a cellular device.
When an individual signs a contract with a cellular company, they solely agree to give up their location information to the company they choose to do business with. The contract, by definition, establishes a relationship between and only between the individual and the company. When an individual chooses to create a relationship with their carrier, they only authorize their service provider to use their location information and have a reasonable expectation that the businesses relationship exists only between the individual and the provider and not any additional organization.
If a government official requires this information for criminal prosecution, they must follow the due process of the law, and have the burden of proof to demonstrate probable cause in order to obtain a warrant to track a citizen. We are a nation of laws and if we choose to ignore just one law, the whole system crumbles. The Fifth Circuit Court of Appeals made a grave mistake in approving warrantless tracking of cell phone users and this is only the beginning of a brand new debate on government intrusion on basic rights of American citizens.