Should Police Know Your Every Move, Thanks to Your Cell Phone?
Cell phones constantly communicate with cell towers, and this information may be used by law enforcement. But does the public have a right to keep this information private?

April 02, 2010 /24-7PressRelease/ -- Should Police Know Your Every Move, Thanks to Your Cell Phone?

Cell phones have become ubiquitous in America, but people rarely think about the complex systems that make them work: how our phones connect with cellular towers to send and receive signals, and how the towers "hand off" our call to the next tower as we move around town.

But law enforcement agents think about these things. In fact, police officers can obtain a great deal of information about our locations and our movement, just from our cell phone records. By using triangulation monitoring a phone's signal strength relative to the three towers nearest to it authorities can identify our locations to within 65 feet, according to one study. And we do not even have to be talking on the phone for the information to be collected: every seven seconds our phones send signals to check which towers will provide the best reception. This means that if the phone is turned on, our locations can be monitored.

How police use this information is a question now before the Third Circuit Court of Appeals. The outcome of the case is expected to be influential nationwide, as police and courts grapple with the question of whether obtaining a person's location from cell phone records is a "search" in constitutional terms, and would therefore require police to first obtain a warrant.

Background to Privacy Rights

The Fourth Amendment protects against unreasonable searches and seizures and generally requires police to obtain a warrant before searching a property for something or someone. A court will only issue a warrant if the police can demonstrate they have probable cause to believe that the thing or person will in fact be found at the location they wish to search.

But the Fourth Amendment offers no such protection for those things in which we have no "expectation of privacy." Courts have ruled, for example, that there is no expectation of privacy in the contents of one's garbage left on the curb, or in the location of one's car in the city. The result is that if police search through a suspect's garbage, or search for a suspect based on what car he or she drives, it is not a "search" in the Fourth Amendment sense and the police do not need a warrant to do it.

Thus the question before the Third Circuit is whether there is an expectation of privacy in the location of one's cell phone. If there is, then the police would need to show probable cause and obtain a search warrant to get the information. If not, the police can obtain it much more easily (a federal law currently allows police to request it).

In the case before the Third Circuit, the police had difficulty locating a suspected drug dealer and asked the court to order a cell phone company to release information about a cell phone belonging to someone associated with the suspect. With this information, the police believed they could get a better idea of where the suspect was likely to be found. The magistrate judge in the case refused to authorize the release of the cell phone records to police, citing the Fourth Amendment.

The Case for Allowing Police Easy Access

Police have already used cell phone records to solve many crimes. For example, Texas officials recently used cell phone records to solve a series of bank robberies. They found that certain phones had been used near each bank around the time of each robbery and this information was crucial to the conviction of the owners of the phones.

The government argues that an individual has no expectation of privacy in the location of his or her cell phone. While a person may have an expectation of privacy in what is said on the phone, the government claims the actual location of the phone is not something that the public expects to be private, and thus this information is no different from any other information that a cop might see while walking the street.

The Case against Allowing Police Easy Access

Others argue that this strategy is, in fact, a search under the Fourth Amendment. They point out that the expectation of privacy has both a subjective component whether an individual believes something is private and an objective component âEUR" whether society at large reasonably believes something to be private. They argue that from either a subjective or objective viewpoint, people do not expect their locations to be revealed by their cell phones.

Furthermore, privacy rights proponents argue, the Fourth Amendment was designed to prevent just this sort of problem: the police should not have the ability to see where anyone is at any time if we wish to maintain individual liberty. When the police do suspect wrongdoing, they can often obtain a search warrant without difficulty, so it is important for our courts to prevent the police from overreaching on those occasions when they do not have probable cause to support a warrant.

Debate Likely to Continue

It is possible that the case before the Third Circuit may be resolved on more narrow grounds. Or it may turn on the difference between historical information about when a call was placed (information that the phone companies keep for months) versus up-to-the-minute information about where a phone is at any given time (which the phone company does not store, and which is potentially more sensitive). However the case is resolved, the constitutional issues are important in terms of both individual liberty and future technology, and the debate is likely to continue for some time.

If you have questions or concerns about how the government may be using cell phone data, or any other information you thought was private, talk to an experienced criminal defense attorney.

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