It’s hardly a secret that the proliferation of digital devices has opened up opportunities and headaches for law enforcement. In the former camp, modern communication devices are de facto tracking devices that store and generate copious amounts of data; access to it could easily make or break a case. In the latter, the use of encryption and other security measures makes it challenging, if not impossible, to access that same data. And now the courts are making it even more onerous to obtain it.
Get a Warrant
According to a recent ruling, law enforcement will “generally” require a warrant to obtain a person’s location data from network providers. Before this ruling, the Third Party Doctrine stated that a person gives up their expectation of privacy when he shares information with a third party (like banks, ISPs, phone companies, etc). Hence, law enforcement could request data from these third parties without a warrant; they only had to prove that the information they were seeking could be pertinent in an investigation. For example, police could ask a bank to see a suspect’s credit card transactions, since it would pinpoint a person’s location at a particular time. In fact, they can still do this going forward.
However, the Supreme Court has decided otherwise when it comes to your location as pinpointed by your cellphone, more specifically, the cellphone location data created and collected by telcos. It is hardly a surprising judgment. For example, bugging a person’s vehicle with a tracker requires a court order because continuous tracking is considered a violation of privacy expectations.
Of course, there is a difference between bugging a car and using a cell phone: be the phone dumb or smart, it’s not the government doing the bugging – you’re bugging yourself and paying a company every month to do so. The government could argue (and probably has) that they’re merely picking up a trail that you’ve agreed to broadcast. It would be no different from you tossing evidence left and right as you flee from a crime scene, creating a trail to yourself as you make your getaway. There’s nothing illegal in law enforcement following that trail. Indeed, they’d be remiss in not doing so.
The thing is, though, that life for many now revolves around access to the services that telcos offer. Well over half the population is using either a dumb or smart phone, and these devices need to know your location. Otherwise, you wouldn’t be able to receive calls or texts. This is also the case for accessing mobile internet.
Furthermore, these devices are very rarely turned off, for obvious reasons. So, the data that’s collected by telcos and shared with law enforcement would include information that traditionally requires a warrant anyway. The warrant requirement for bugging a vehicle was already mentioned. Even more sacrosanct is the privacy of a person in one’s home, and law enforcement’s incursion nearly always requires a warrant. Even pointing a thermal imaging device to a person’s home without court approval is illegal, which technically does not involve “entering” the home but does involve obtaining evidence from it.
So, an “information dump” of telco data over an extensive period would already come to loggerheads with such legal restrictions, it seems.
However, the judges ruled, five to four, that a warrant is necessary when accessing telco location data because the data allows the type of surveillance from which the Fourth Amendment protects US citizens. Remember, the Fourth exists because the British authorities would look for evidence of wrongdoing whenever they felt like it, wherever and whomever it might be.
The Fourth Amendment
The US Constitution provides protections from that sort of thing. Certainly, you could have committed a crime. And, certainly, evidence of said crime could be in your home. But, the law can only enter your home and search for that evidence, and only that evidence, if they have probable cause, which is the grounds for issuing a warrant.
Consider, then, the aspects of the information that law enforcement claims it should be able to access without a warrant:
- Location data is very accurate. Not as accurate as GPS but close enough – and the technology will only get better to the point that it will be just as good as GPS or better.
- This data now covers a sizable number of the entire US population, seeing how Americans of all stripes and colors carry a cellphone.
- The collected data is excessive. A person’s location can be pinged by cell towers multiple times every minute. One can literally tell where a person is every minute of the day.
- The data is retroactive. The location data is stored by telcos for up to five years. Change the law, and it could be ten years. Perhaps even longer if DNA storage finally happens. (‘Cause, let’s face it, the only reason why telcos don’t want to keep this data long term is tied to storage costs).
So, we’re talking about data that’s akin to what would be generated if you implanted a tracking chip on most Americans and let them go about their lives. And because the government didn’t force anyone to do this, and third parties are involved, a warrant shouldn’t be necessary when trying to get a hold of this data. This, in a nutshell, was their (very dystopian) argument.
The courts (barely) disagreed.
However, it follows a number of rulings over recent years where the courts have upheld privacy interests over law enforcement. It seems that slowly, but surely, as the effects and impact of technology begins to leave an imprint upon all – as opposed to the young or the hip or the tech-savvy – people are beginning to have a better understanding of what’s at stake.
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