The moment that you signed that cell phone contract, you also conceded to carrying a government tracking device.
That’s the inescapable conclusion of a three-judge federal court panel Tuesday, which found that the government need not seek a warrant to acquire cell phone tracking information directly from your service provider without a warrant. The same technology that allows cell phone users to make calls also allows cell phone companies to know where you are and when you make the call. The Fifth Circuit Court of Appeals ruled that since you’ve already provided that information to a third party, it’s not protected by the Fourth Amendment’s ban on warrantless searches. “Their use of their phones,” the judges wrote, “is entirely voluntary.” The big difference between this view of cell phones and electronic ear tags affixed to cattle is that you signed a contract.
The crazy part? They’re on firm legal ground, because of something called “third-party doctrine”—a legal concept established by a set of court decisions over decades that treats records held by a “third-party” as not subject to the same level of protection as say, the private journal you keep in a locked file cabinet in your home. Most of those decisions were made before anyone could have imagined the amount of private information held by third parties in modern life. Simply looking at your cell phone tracking data, the government can sketch out a great deal about how you live your life—when you go to work, when you eat lunch, possibly even who your closest friends are. Maybe even 10 years ago, a cell phone wasn’t necessary. But for many Americans, having a cell phone is a necessary part of having a job and making a living. For millions of people having a cell phone is “voluntary” only in the most superficial sense of the word.
The Fifth Circuit did have a lot of legal precedent on its side, even if it seems outdated. Two weeks ago the New Jersey Supreme Court came to the opposite decision, with the chief justice writing that “Cell phones are not meant to serve as tracking devices to locate their owners wherever they may be.”
Congress has also taken note. Two bipartisan proposals introduced in March, one in the House put forth by Republican Rep. Jason Chaffets of Utah and one in the Senate by Ron Wyden of Oregon that would change the law to require the government to get a warrant to acquire cell phone tracking data. The Fifth Circuit’s ruling may spur more urgency on behalf of legislators to get them passed.
The Supreme Court hasn’t weighed in yet on whether or not cell phone data should be subject to a warrant. But as Reason‘s Jacob Sullum notes, in 2012, in a case involving a GPS location device police attached to a suspects’ car without a warrant, Justice Sonia Sotomayor gave a prescient warning about just how much information the government could glean about someone just from information given to a third party in an age where our most intimate conversations, thoughts and secrets are often stored online. “I would ask whether people reasonably expect that their movements will be recorded and aggregated in a manner that enables the government to ascertain, more or less at will, their political and religious beliefs, sexual habits, and so on,” Sotomayor wrote.
Tuesday, a federal court said that even if Americans’ don’t have that expectation, they clearly should.
Adam Serwer