A federal judge on the Sixth Circuit court has ruled that a convicted weed dealer “did not have a reasonable expectation of privacy in the data given off by his voluntarily procured pay-as-you-go cell phone.” In other words, it was perfectly legal for the police to wiretap him without a warrant and use the data they gathered against him in court. This ruling could have sweeping implications for the future of data privacy, as Helen A.S. Popkin reports over at Technolog:
Here’s the crux, as it may relate to everyone else: “There is no Fourth Amendment violation because Skinner did not have a reasonable expectation of privacy in the data given off by his voluntarily procured pay-as-you-go cell phone.” That’s what Judge Rogers stated in the in the majority opinion, where he cited the Stored Communications Act. The law hamstrings the Fourth Amendment in relation to wire and electronic communications — noting that the use of third-party providers diminishes a person’s expectation of privacy.
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In this latest, ruling, [ACLU attorney Catherine] Crump said, “the Court seems to think that if criminals use cellphones, they can hardly complain if they are tracked through these phones. But the court’s reasoning deprives all of us of constitutional protection against warrantless cellphone tracking. And besides, even suspected bad guys have constitutional rights.”
And that doesn’t just apply to lawbreakers. BusinessWeek caught this footnote in the opinion: “We do not mean to suggest there was no reasonable expectation of privacy because Skinner’s phone was used in the commission of a crime. On the contrary, an innocent actor would similarly lack a reasonable expectation of privacy in the inherent external locatability of a tool that he or she bought.”
Ned Resnikoff is an urban policy analyst, researcher, writer, and editor. His byline has appeared in a variety of publications, including the New York Times, San Francisco Chronicle, Dissent, and The Nation. He writes the newsletter Public Comment, which can be found at publiccomment.blog.
