In a precedent setting case, the U.S. Sixth Circuit Court of Appeals has determined that law enforcement can track a suspect’s whereabouts by honing in on their cell signals without having to first obtain a probable cause warrant. While there’s no doubt that the majority of us are glad the appeal in this particular case was denied, keeping a well-known drug dealer off the streets, the ramifications of the decision are far reaching, as many see warrantless location tracking as yet another way for Big Brother to keep track of the people.
In a 2-1 decision, the judges in the case ruled that the suspect was tracked using a cellphone connected to a public network and that the phone itself was used in a public space, ultimately leading to the decision that police did not violate the suspect’s Fourth Amendment rights by tracking his location through the signals sent from his cellphone to nearby cell towers.
While some might think the courts decision has at least brought some clarity to the issue of cellphones and the reasonable expectation of privacy, it looks like quite the opposite has happened, as the distinction between private and public mobile usage remains nebulous…not to mention that potentially any device used in a public space now loses constitutional protection.
Regardless of the fact that known drug dealer and money launderer Melvin Skinner will remain in jail for the next several decades, privacy groups like the American Civil Liberties Union (ACLU) are raising concerns over the ramifications of this decision, particularly as it relates to the reasonable expectation of privacy while using one’s mobile device, and rightly so.
The Skinner case is “almost like having a safety deposit box in the bank,” Heidari Power Law Group’s Yasha Heidari told popular tech site TechNewsWorld. “A reasonable person would expect that the contents of that box would remain secure and private, and that the government would need a warrant to inspect the contents, irrespective of the fact that the box is being held by a third party.” The contents in question here being the data logged by Skinner’s phone.
At the heart of this case is the expectation of privacy, a point that becomes increasingly nebulous when dealing with mobile devices. If a person was talking loudly on their mobile phone of illegal activities while sitting on the bus, for instance, clearly that person has waived their reasonable expectation of privacy, simply because they chose to enter the public realm. So to, the appeals judges seem to be arguing, when a criminal uses their cellphone in public and access a public network there is no reasonable expectation of privacy, they have waived that right.
But of course the question is, have they really waived their right to privacy? In a statement, ACLU Staff Attorney Catherine Crump writes, “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.”
The issue here of course is not whether law enforcement agencies can ever access such location information, but the steps they need to take to protect the rights and freedoms of all citizens. This means, as Crump explains, “Because of the privacy interests at stake, law enforcement should have to go to a judge and get a warrant, which involves proving that they have probable cause to believe that tracking location would turn up evidence of a crime.”
Simply put, while warrantless cellphone tracking was able to put a known criminal behind bars, demanding that warrants be obtained before engaging in such activities remains the best way to guarantee that law enforcement can still operate effectively while upholding each citizen’s right to privacy.