STOCK MARKET WATCH -- Friday, 17 August 2012

[Demeter]

10. Appeals Court Rules Fourth Amendment Does Not Protect Cell Phone Location Data

http://www.aclu.org/node/36123

TUESday the Sixth Circuit Court of Appeals issued an unfortunate and legally incorrect decision holding that the Fourth Amendment provides no protection against warrantless cell phone tracking. Although couched in language stating narrowly that the Constitution does not protect criminals’ “erroneous expectations regarding the undetectability of their modern tools,” the impact of the opinion sweeps far more broadly, holding that the innocent as well as the guilty lack Fourth Amendment protection in cell phone location information. This is wrong, for a number of reasons.

The defendant in the case is one Melvin Skinner, who was allegedly involved in a marijuana trafficking operation of epic proportions. After a complex investigation by the Drug Enforcement Administration, Skinner was busted while in possession of over 1,100 pounds of marijuana. The DEA tracked Skinner down in part by obtaining various kinds of location tracking data for the cell phone he was using: cell site information, GPS real-time location, and “ping” data. Law enforcement agents appear to have tracked Skinner’s movements using this information for about three days.

The ACLU has argued repeatedly that the Fourth Amendment provides protections against warrantless cell phone tracking, particularly continuous tracking over prolonged periods of time such as the three days at issue in Skinner’s case. The Fourth Amendment protects people’s reasonable expectations of privacy, and people reasonably expect that they will not be subject to this invasive form of surveillance. That is because location data is very sensitive, revealing private facts. As an appeals court has observed:

A person who knows 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.

That is not to say that law enforcement agents can never obtain cell phone location data. The question, rather, is under what circumstances they are permitted to do so...