Sunbelt Blog

Under Review: Cell Phone Privacy

Cell phones, when turned on, regularly communicate with cell phone towers, establishing a record of the phone's - and by extension, the user's - whereabouts. The process of communicating with cell phone towers ensures that the cell phone connects to a nearby tower capable of delivering the strongest signal. As the cell phone moves along a route, it is constantly searching for stronger signals and switching as necessary, creating a path that is easily tracked by cell phone companies. Techniques such as triangulation can pinpoint a standard cell phone's location down to as close to a few hundred yards. The location of GPS-equipped phones can be tracked even more precisely.

Lawyers, privacy rights advocates, and cell phone users are anxiously awaiting the outcome of arguments presented to the U.S. 3rd Circuit Court of Appeals last week. The court is hearing an appeal of an opinion issued in February 2008 by U.S. Magistrate Judge Lisa Pupo Lenihan. The 52-page opinion concludes that:

". . . the Government does not have a statutory entitlement to an electronic communication service provider's covert disclosure of cell-phone-derived
movement/location information, the Government's application(s) for such information, absent a showing of probable cause under Fed. R. Civ. P. 41, must be denied."

 

So, what's the big deal about letting a law enforcement agency look at cell phone location without probable cause? After all, wouldn't it be helpful to know that a suspect was within a few hundred yards of a crime scene at the time of the crime? Privacy advocates are concerned that without standards, agencies or the government could track a person's activities including attendance at political events, religious services, or even strip clubs. At issue isn't the law enforcement agency's right to cell phone location data, but rather the standard that must be adhered to in order to obtain a warrant requiring access to the cell phone location data.

While the case focuses on cell phone location data, it could extend to other GPS-enabled devices. For example, many new cars come equipped with onboard GPS systems such as Microsoft Sync or GM's OnStar system. Portable GPS devices have become increasingly popular, providing users with turn-by-turn directions and pinpointing their exact locations via global positioning satellites. Many businesses equip their fleets with transmitters that constantly monitor each vehicle's location, speed, and mileage. Other vehicle tracking technology, such as LoJack, is used for pinpointing a vehicle's location after a theft. Other current technologies that may be leaving a traceable location trail include portable computers, netbooks, music players, and PDAs. Even wireless devices such as the Kindle eReader may reveal the user's whereabouts based on which Wi-Fi connection was used to access an online account.

Judge Lenihan wrote:

"The movement/location information at issue here. . . is the subject of express Congressional protection. Indeed, Congress has reiterated throughout the legislative history of its electronic communications legislation, and reflected in the provisions of its enactments, its recognition of an individual expectation of privacy in "location information" and desire to protect this privacy right from unwarranted or unreasonable encroachment."

 

Do you think the 3rd Circuit will agree? Disagree? Share your insights with us.