Despite a recent Supreme Court ruling affirming that warrantless cellphone searches are unconstitutional, warrantless location tracking of mobile technology remains in a legal grey area.
This is how some states are addressing the issue:
A bill banning law enforcement from tracking cellphone location information without a warrant passed the South Carolina House back in May.
H4791 was introduced by Rep. Garry Smith (R-Greenville) and was cosponsored by 39 other representatives. It passed with overwhelming bipartisan support by a vote of 89 to 17, yet it still sits idle in the SC Senate judiciary committee.
From the bill:
“A governmental entity may not obtain geolocation information revealing the past, present, or future location of an electronic device” without a warrant, permission from the owner, or very limited emergency situations.”
H4791 would not only protect people in South Carolina from warrantless data gathering by state and local law enforcement, it will also end some unpractical effects of unconstitutional data gathering by the federal government.
In South Carolina in particular, cell phone tower dumps give location data to local police indiscriminately. In fact, it was reported in late 2013 that 2.5 Million law enforcement data dump requests were made during 2011 in the state alone.
Tower dumps give investigators information on every cell phone connected to any particular tower during a requested time. Even if they are not related to the crime.
“Am I surprised this is happening? Certainly,” said Jay Bender, a First Amendment attorney. “To turn everybody’s telephone data to the police unrelated to any suspicion of crime, I think it’s an unreasonable search and seizure. I don’t think that’s permitted by the Constitution.”
When your cell information ends up in a police database, it could stay there a long time. South Carolina evidence control laws say if a suspect is convicted or pleads guilty, police could keep everything they get from a Tower Dump for up to seven years. This could literally include tens of thousands of people for every single tower dump.
Keith Pounds, president of counter terrorism consulting firm Countercon supports tower dumps. “We want them to catch the bad guy,” he says. But only if a search warrant is signed, the data is purged after an investigation is complete, and law enforcement notify subscribers included in the database.
In 2011 across the country, two top providers AT&T and Verizon, filled more than half a million requests for location data through court ordered dumps and other emergency requests.
On the federal level the NSA collects, stores, and analyzes data on countless millions of people without a warrant, and without even the mere suspicion of criminal activity CONSTANTLY.
It is confirmed that the NSA tracks physical locations of people through their cellphones.
The Washington Post reported that NSA is “gathering nearly 5 billion records a day on the whereabouts of cellphones around the world.” This includes location data on “tens of millions” of Americans each year – without a warrant.
Through fusion centers, state and local law enforcement act as information recipients from various federal departments under the Information Sharing Environment (ISE). ISE partners include the Office of the Director of National Intelligence, which is an umbrella covering 17 federal agencies and organizations, including the NSA. State and local law enforcement share data up the chain with the feds.
The NSA expressly shares warrantless data with state and local law enforcement through a super-secret DEA unit known as the Special Operations Division (SOD). That information is being used for criminal prosecutions. A Reuters report last fall showed that most of this shared data has absolutely nothing to do with national security issues. Most of it involves routine criminal investigations.
Meanwhile, Tennessee Gov. Bill Haslam recently signed a bill that bans “a governmental entity or law enforcement agency from obtaining the location information of an electronic device without a search warrant except under certain circumstances.”
That law took effect immediately, May 22 last year.
The Off Now Coalition, an organization fighting federal surveillance at the state level, criticized an amendment to the bill granting law enforcement special exemptions to engage in warrantless location tracking.
Those exemptions include: if the device was reported stolen by the owner, to “prevent imminent danger to the public,” and if the device owner posted their location “within the last twenty-four (24) hours on a social media web site.”
Stingray and other States
A USA Today investigation published late last year revealed that at least 25 police departments across the country own and operate whats been dubbed a “Stingray.” Stingrays are portable devices that mimic a cell tower and trick nearby cell phones to connect to it.
The Stingray then captures the connected devices’ data, allowing law enforcement to track users’ locations. They are relatively small and easily transportable.
Florida law enforcement agencies have since stonewalled public records requests by the American Civil Liberties Union about their use of the technology, Watchdog.org previously reported. This culminated with US Marshals raiding the offices of police in Sarasota to confiscate Stingray records in order to prevent their release.
Real-time location tracking without a warrant is not the only area state lawmakers are looking to rein in.
The Supreme Court has ruled using GPS devices to track people without warrants is unconstitutional. They have ruled that warrantless cellphone searches are unconstitutional. But they have not particularly looked at warantless cellphone tracking.
The Fifth Circuit Court of Appeals however, ruled last year that individuals have no reasonable expectation of privacy over their location data. The decision states that location data is a “business record” created by private companies with the implicit consent of cell phone users and therefore are not subject to privacy protections.
The rationale was that cell phone companies are not required by the government to create or retain this data and that citizens are not required by the government to carry or use cell phones, thus making this data subject to the Third Party Doctrine and removing any expectation of privacy.
A ruling in June of last year, from the 11th Circuit Court of Appeals, contradicted that ruling finding that police “must obtain a warrant before collecting cellphone location data.” The opinion affirms that acquiring records of what cell towers a phone is connected to, and when it was connected to them, constitutes a Fourth Amendment search.
In its reasoning, the court noted that while the Fourth Amendment has traditionally been applied to property rights, it’s gradually expanded to protect much more, including communications.
“In the 20th century, a second view gradually developed,” the court writes, “that is, that the Fourth Amendment guarantee protects the privacy rights of the people without respect to whether the alleged ‘search’ constituted a trespass against property rights.”
While the 11th Circuit ruling won’t overturn the Fifth Circuit ruling because of their separate jurisdictions, it adds critical precedent to a privacy question that’s still far from decided across the country.