A Federal appeals court in Texas has ruled that law enforcement can obtain from cellphone service providers the geolocation data that pinpoints the physical movements of individual users over time without first obtaining a search warrant.
The ruling, handed down by the U.S. Court of Appeals for the 5th Circuit, drew immediate condemnation from the Electronic Frontier Foundation (EFF) and the American Civil Liberties Union (ACLU). The 5th Circuit holds jurisdiction over appeals cases originating in Texas, Louisiana and Mississippi.
Tuesday’s ruling was meant to clarify whether the 4th Amendment protects warrantless people-tracking based on data held privately by companies paid to provide a service to private individuals. In a 2-1 ruling, the Court found that such searches by law enforcement weren’t “per se unconstitutional” since the data was “clearly a business record” and, therefore, doesn’t fall under 4th Amendment protection.
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The ACLU condemned that perverse interpretation in a long rebuttal, released the day of the ruling. Here’s a portion:
It has long been our position that the government must obtain a warrant based on probable cause before engaging in surveillance of people’s historical cell phone location information. Today, our efforts were dealt a setback. Over a strong dissent, the Fifth Circuit Court of Appeals held that individuals have no reasonable expectation of privacy over their location data. According to the court, law enforcement agents do not need to obtain a warrant to get this information, ruling instead that a less protective standard suffices.
This ruling is troubling because, as we and the Electronic Frontier Foundation (EFF) argued, only a warrant standard fully protects Americans’ privacy interests in their locations and movements over time. Cell phone companies store records on where each of us have been, often stretching back for years. That location information is sensitive and can reveal a great deal — what doctors people visit, where they spend the night, who their friends are, and where they worship. Given the sensitivity of these facts, law enforcement agents should have to demonstrate to a judge that they have a good reason to believe that they will turn up evidence of wrongdoing before gaining access to information that can paint a detailed picture of where a person has been over time.
The Fifth Circuit did not accept this argument. It concludes that because historical cell phone location records are the business records of cell phone companies, individuals can have no reasonable expectation of privacy in them — and therefore no Fourth Amendment protections.
…This reasoning, generally referred to has the “third-party doctrine” (according to which you don’t have a privacy expectation in any information turned over to a third party), was developed decades ago, long before cell phones were common, the use email was widespread, or the general public had heard of the Internet. It’s not compatible with the ease with which digital technologies collect data about each of us today.
Indeed, cellphone companies easily track and store data on where you’ve been with your phone. A 2010 petition organized by the ACLU yielded an information sheet from the U.S. Department of Justice revealing that Verizon holds onto such information for one “rolling” year, while Sprint hangs onto users’ geolocation data for 18 to 24 months.
“There is no cell phone company that doesn’t retain historical cell site location data, or even one that keeps it only for a short time. And anyway, our Fourth Amendment rights should not depend on the largesse of for-profit corporations,” the civil liberties watchdog concluded.