The Supreme Court decision United States v. Jones recently ruled unconstitutional the warrantless tracking of crime suspects via GPS tracking devices. Though the decision marks a clear victory for personal privacy and Fourth Amendment freedom from warrantless searches, it is limited in scope to blocking warrantless use of GPS devices, leaving other forms of digital tracking in a legal grey area. There’s still no single precedent nor piece of legislation — except, of course, for the Fourth Amendment — barring law enforcement agencies from tracking your location warrantlessly through other electronic means, like your cell phone. A recent public records request by the American Civil Liberies Union revealed that this practice of warrantless tracking, often done with a minimum of oversight or accountability, is more common than you may think — and is even frequently utilized by local law enforcement agencies acting in non-emergency situations.
In August of last year, the ACLU filed over 380 public records requests asking state and local law enforcement agencies from across the country to provide information about their cell phone tracking policies, practices, and procedures. The requests yielded over 5,500 pages of internal records. Of the more than 200 police departments that responded to the requests, nearly all reported tracking cell phones in some capacity, though very few departments reported being bound by policy to obtain a warrant first. “While cell tracking by local police departments has received some limited public attention in the last few years,” reports the New York Times, “the A.C.L.U. documents show that the practice is in much wider use — with far looser safeguards — than officials have previously acknowledged.”
“Most law enforcement agencies explained that they track cell phones to investigate crimes,” writes the ACLU on its blog. “Some said they tracked cell phones only in emergencies, for example to locate a missing person. Only 10 said they have never tracked cell phones.”
Of those using cell phone tracking technology, police departments vary widely in their practices and the type of data they obtain. Most law enforcement agencies submit requests for records directly to major cell phone service providers, who can make good money on the exchange. The cost of cell phone location records ranges from a few hundred dollars to track a phone’s location, up to over $2,200 for a wiretap, The Times reports. Some agencies have policies in place restricting the use of warrantless cell phone tracking to emergency situations, while others have identified in non-emergency situations all users of a particular cell tower, and others still have learned how to download callers’ text records even when the phone is turned off. There are even small town law enforcement agencies, like the police in Gilbert, Arizona, who have invested hundreds of thousands of dollars on their own cell surveillance equipment, so that they can bypass the time, cost, and potential red tape of requesting help from cell phone service providers.
There are police departments that do protect public privacy by requiring a subpoena or warrant when tracking cell phone locations, though they’re in the minority. Police departments committed to this practice include the Wichita, Kansas; Lexington, Kentucky; and the County of Hawaii. Groups like the ACLU cite these departments as examples that law enforcement agencies can adequately fulfill their duty to serve and protect the public without unduly overstepping the boundaries of privacy.
Other agencies claim that questions of legality are trumped by the pragmatic benefits of the technology. Police in Grand Rapids, Michigan, were able to save the life of a stabbing victim whom they found via a cell phone locator, according to the New York Times. “We find people,” criminal analysts Roxann Ryan told The Times, “and it saves lives.”
Last I checked, though, the PD on the sides of police cruisers typically stands for Police Department rather than Pragmatism Determiners. As moving as such individual stories can be, it is law enforcement’s job to uphold the law and protect citizens in accordance with and deference to United States law, and particularly the Constitution, rather than to make ad hoc decisions about legality and practicality. Behind all the stories of life-saving constitutional breaches lie untold numbers of occasions where a citizen’s privacy has been violated without any benefit to that citizen or anyone else, or — worse — where the result of the breach may even have led to physical harm, arrest without due process, or public shame. It’s a slippery slope to let law enforcement agencies track private citizens indiscriminately. No matter the potential benefits, the potential for misuse of the practice poses a threat to individual liberty and the democratic process. As this ruling in a Washington, D.C. federal appeals court explained:
- 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.
A recent circuit court ruling in Maryland determined that cell phone location data is not protected under the Fourth Amendment, while judges presiding over cases in Philadelphia and Texas could rule otherwise. In Congress, bipartisan legislation called the Geolocation Privacy and Surveillance (GPS) Act is sponsored by Senators Ron Wyden (D-Ore.) and Mark Kirk (R-Ill.), and in the House by Representatives Jason Chaffetz (R-Utah) and Peter Welch (D-Vt.). The bills would require law enforcement agencies to obtain a warrant before tracking any geolocation information.