WARRANTLESS CELL PHONE SEARCH

Who would have thought a Supreme Court opinion written by Justice Scalia would lend support to a PRO-privacy argument gearing up in the Fifth Circuit?! In January, Scalia wrote an opinion in a case finding police installation of a GPS device on a car for 28 days violated the Fourth Amendment. Following this ruling, police have had to come up with other ways to track suspects without a warrant and they thought they did so by changing the technology and accessing the location data stored in mobile phones. Not so fast. The government appealed a 2010 decision in which the court ruled against warrantless disclosure of cell data as violative of the Fourth Amendment, resulting in a showdown in the Court of Appeals between the Obama Administration and the ACLU and Electronic Frontier Foundation. The feds claim they should be able to track suspects via phone records for 60 days without a warrant because a cell phone customer “has no privacy interest” in GPS records since the information is “voluntarily conveyed” to the cell phone company. However, the ACLU and EFF argue if tracking a vehicle for 28 days is a search, a 60 day cell phone track clearly falls into the same category. Indeed, tracking one’s whereabouts on a cell phone is even more intrusive than via a car as phones are always with their owner in both public and private spaces. This is not the first time this issue has made its way to the courts. The Sixth Circuit ruled in August warrantless cell phone tracking is legal, but district courts in Pennsylvania and Texas ruled the process unconstitutional. Whatever happens in the Fifth Circuit, privacy concerns and emerging technology are hot button issues ripe for the Supreme Court. Law enforcement obtains an incredible amount of useful information through surveillance and in cases where a warrant must first be obtained, it is not such an onerous process that the investigation would be jeopardized if it had to go through the courts first.  A recent congressional inquiry found major wireless carriers received more than 1.3 MILLION requests for subscriber data from law enforcement alone in 2011! Big Brother is clearly watching and tracking our whereabouts.  How you like that?