A recent federal court ruling that sanctioned the warrantless tracking of American cellular users was deeply troubling. It revealed a disturbing expansion in the scope of power of U.S. executive bodies and has sparked a great distrust among the American people of federal and state authorities.
In what has become, as the New York Times describes, "a routine tool" for state and federal agents, cell-phone tracking remains a topic many law enforcement officials shy away from discussing. The popularity of the practice has led to its adoption by many local police departments and has become the most prevalent invasive way government officials invade personal privacy.
The unnoticed and equally-upsetting aspect of this situation is corporate complicity in government intrusion on the personal sphere.
As the Fifth Circuit Court astutely, but briefly, acknowledged in their discussion
"We understand that cell phone users may reasonably want their location information to remain private ... But the recourse for these desires is in the market or the political process: in demanding that service providers do away with such records (or anonymize them) or in lobbying elected representatives to enact statutory protections."
The Court brings up an increasingly fascinating and robust alternative to protect user data that all Americans need to consider and pursue in conjunction with efforts to persuade local and state representatives to protect individual privacy. The onus for changing the policy of granting personal and private information to the government does not solely fall on the courts and legislative bodies. It is cell phone companies and network providers that need to transform their data storage policies, and only the American people can make that happen.
Very often, phone companies charge surveillance fees to the Federal Government to collect data on their users. This multi-million dollar market has U.S. tax dollars funding company surveillance fees, or in other words, Americans are paying the U.S. government to be spy on them. Ignoring the unsettling notion that we are involuntarily being forced to pay for our own surveillance, the U.S. Government is not the sole entity to be held responsible for this ironic phenomenon.
Phone companies are not required to keep location records of their customers and are not obligated to store and catalogue the private records of individuals. As a society, we have contractually granted phone and technology companies' full access and use of this data and have largely ignored their roles in the watching and tracking of the public. Private companies are not absolved from the responsibility for intrusion into the private lives of everyday Americans and need to finally face proper scrutiny for their policies.
While these companies are certainly guilty of their own individual invasions of our privacy, they have become complicit in the government's. Service providers can avoid acquiescing to the government's massive collection of metadata and targeted warrantless tracking by avoiding long-term storage of location data and avoiding custody of repositories of our information.
Phone and technology providers can simply discard the old, historical individual data of its users or as the court suggests, anonymize it. Companies have a myriad of options of shielding user data and should focus on individual user protection until the government complies and is required to obtain a warrant for searches.
While companies should have immediate and recent location data available to assist in emergency phone calls (i.e. child abductions and suicide threats), government possession of long-term location records of cellphone users can help establish frightening narratives to the government of individuals habits' and lifestyle preferences, such as their place and frequency of worship, attendances at political protests and rallies, visits to hospitals and clinics, and obtaining knowledge of their network of friends and associates.
Problems, however, also arise with tracking of the real-time and live location data of users. If the government can access that information without a warrant, the government would have the power to track and identify the location of any American with a cell-phone. Just the possibility of government possessing this power is dangerous and risks the slippery slope from this prospect into the dystopia of George Orwell's 1984.
For this reason, the private sector needs to avoid granting the government unrestricted access to user data. Companies can request court approval when law enforcement officials submit a tracking request and can deny access to their data without the formal approval. To obtain a court order, officers need only indicate on reasonable grounds their requested information may be pertinent to an investigation — a far lower legal standard than is required for a search warrant. Until government officials are required to produce a warrant to gather cellphone user data, forcing them to produce minimal court approval adds a modest, yet nonetheless extant, safeguard from complete government abuse.
In recent years, several magistrates have denied federal and state authorities' applications for court orders to track cellular devices. These judicial challenges to the unrestrained proliferation of American's personal data demonstrates that companies still have some traditional modes for resisting government interference into lives of millions of Americans.
Once more, the ultimate responsibility for transforming the status quo relies on the individual. When an individual signs a contract with their phone company, they form a relationship with that company — and only that company — and give the rights to their personal data exclusively to that phone company. Most companies are contractually obligated not to disclose or share any of that data and it is their responsibility to honor that agreement.
The company is paid primarily to provide phone service to a customer and not to stalk that customer. While often contractually enabled to collect data of their users, as a society, we need to be just as cautious of private sector encroachments on our personal lives as governmental encroachments. To avoid a corporatist dystopia where exploitation of consumers runs rampant, information and services we voluntarily yield to these companies need to be monitored.
Ultimately, we must hold companies culpable for impingement on our privacy and for consent for government's intrusion of our privacy. While companies are required to acquiesce, as they should, to court orders and search warrants, they are not obligated snoop on the American people for their own personal gains and can resist unlawful government requests for information.
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