Information Intersection > Troutman Sanders LLP

Cell Phone Location Data and Expectations of Privacy

Posted: January 9, 2014

Do the police need a warrant to find out the location of a person’s cell phone?  In 2013, courts gave different answers to this question, examining the issue in the broad context of current technology and privacy and expectations.  Even outside of the criminal context, cases dealing with this issue merit watching, because they are the “front lines” of the intersection between personal privacy vs. technological capability.

1094092_25190414

In a widely publicized case, last July, the New Jersey Supreme Court unanimously said, yes, an individual’s privacy interest requires that law enforcement must obtain a search warrant to access cell phone location data.  The warrant must be based on probable cause, or else law enforcement must show that it can qualify for a recognized exception to the warrant requirement.

In State v. Earls, the police coordinated with a burglary suspect’s mobile carrier to “ping” the location of the suspect’s phone on three occasions in one night.  The police, who never sought a warrant, used the cell phone location data to first locate the suspect’s car, then found the suspect at a motel and arrested him.  The New Jersey Supreme Court reversed the appellate court to hold that the police could not access the data without obtaining a warrant, becoming the first state supreme court to impose such a requirement.

One factor possibly limiting the impact of Earls outside of New Jersey is that the court examined the issue under both the United States Constitution and the New Jersey state constitution.  As the court noted, New Jersey’s constitution has been interpreted to give individual’s greater privacy protections in certain cases than the Fourth Amendment.  Nevertheless, Earls, provides a very expansive analysis of the interplay between currently developing technology and privacy expectations, with insights that go beyond the application of the law to criminal procedure.

The Earls court described the mechanics of how a cell phone communicates with a cell phone tower every seven seconds and that the data from these communications can be used to track the user’s location and movements in real time.  The phone can be tracked when the user makes calls, sends texts, surfs the internet—or even if the phone is simply turned on.  The court emphasized that the technology has developed rapidly since 2006, when the suspect in Earls was tracked.  Then, most tracking could approximate the phone’s location within a mile radius.  Now, in some areas, carriers can locate cell-phone users within buildings, and even within individual floors and rooms within buildings.”

Against this backdrop of expanding technological capabilities, of which many cell phone users are not aware, the court examined the expectation of privacy from the individual’s perspective.  The court declared, “Using a cell phone to determine the location of its owner can be far more revealing than acquiring toll billing, bank, or Internet subscriber records.  It is akin to using a tracking device and can function as a substitute for 24/7 surveillance without police having to confront the limits of their resources.  It also involves a degree of intrusion that a reasonable person would not anticipate.  Location information gleaned from a cell-phone provider can reveal not just where people go – which doctors, religious services, and stores they visit – but also the people and groups they choose to affiliate with and when they actually do so.  That information cuts across a broad range of personal ties with family, friends, political groups, health care providers, and others.  In other words, details about the location of a cell phone can provide an intimate picture of one’s daily life.”  The court concluded by finding that cell phones are generally intended to serve as communication devices, and not tracking devices, and therefore individuals have a legitimate privacy interest in cell phone location information.

Federal courts have thus far given inconsistent rulings on this issue, although the majority of courts and the higher courts have held that a warrant is not required.  After Earls, the Fifth Circuit in In re: Application of the United States of America for Historical Cell Site Data, held that the Fourth Amendment’s prohibition on unreasonable searches and seizures did not apply to cell phone location data.  That court reasoned that there is not a reasonable expectation of privacy under the Fourth Amendment because the location data (distinct from the content of communications) was shared by the user with their carrier.  Therefore, the government’s request in that case only needed to conform with the statutory requirements set forth in the federal Stored Communications Act.   A clear distinction between the Fifth Circuit case and the Earls case is that, as the New Jersey court noted, under New Jersey law an individual’s privacy interest does not always rest on whether he or she is required to disclose information to third party providers to obtain service.

Given the facts that most Americans use a cell phone multiple times every day, law enforcement routinely relies on cell phone location data to track criminal suspects, and the privacy expectation issues raised in these cases and with other new forms of government surveillance, it should not be surprising if the United States Supreme Court eventually settles the issue on the federal level.

0 comments

There are no comments yet...

Kick things off by filling out the form below.

Leave a Comment

Confirm that you are not a bot - select a man with raised hand: