Warrantless Cell Phone Tracking Common Among Law Enforcement Agencies

Article provided by New Jersey Criminal Defense Lawyer - Anthony N. Palumbo

Cell phone location tracking has become an increasingly important law enforcement tool in recent years, allowing police to find suspects or victims in emergencies and complementing more traditional surveillance techniques during routine investigations.

According to evidence compiled by the American Civil Liberties Union from more than 200 police departments across the country, cell phone tracking has also become commonplace and is used by nearly all law enforcement agencies, large and small. However, the ACLU also found that most cell phone tracking data is collected without search warrants based on probable cause, which raises significant concerns about privacy and government overreaching.

When is a Warrant Required?

Cellular service providers control a great deal of personal information, including location data, records of text messages, and calling patterns. Service providers are not legally required to share this information with law enforcement agencies, but the ACLU found that many service providers sell this type of personal data to police departments on a regular basis, often without requiring a court order.

Compounding the situation, the legal requirements regarding the standards and procedures that police must follow before using tracking data tend to be confusing and inconsistent, with regulations varying from state to state and city to city. Only a small number of agencies require warrants based on probable cause, the ACLU found, while others use less searching subpoena standards or require only a determination that the data is relevant to an ongoing investigation.

Despite these findings regarding the lack of oversight over cell phone tracking, the ACLU's records did not suggest that law enforcement agencies have conducted warrantless wiretaps on cell phone users. Wiretaps, which allow police to listen in on conversations as opposed to simply tracing their locations, must comply with warrant requirements specified under federal law.

Warrantless Cell Phone Tracking and the Fourth Amendment

Although the U.S. Supreme Court ruled earlier this year in U.S. v. Jones that police violated a defendant's Fourth Amendment right to be free from unreasonable searches and seizures by installing a GPS monitoring device on his car without first obtaining a warrant, the decision focused on the physical trespass of the monitoring device and did not address cell phone tracking specifically. As a result, the decision left in place earlier cases that upheld warrantless electronic tracking of suspects' movements along highways and through other public places where there is no reasonable expectation of privacy. The decision raised significant questions, however, about how such privacy expectations should be affected by technological innovations such as smart phones and ubiquitous GPS signaling. As a result, the law remains murky on the Fourth Amendment issues implicated by warrantless cell phone tracking

Looking Ahead

The ACLU's findings regarding warrantless cell phone tracking highlight a lack of adequate standards, procedures, and oversight, and suggest that stricter safeguards are needed to protect individuals' privacy and prevent unreasonable government surveillance practices. Responding to the need for clearer regulations, Congress and about a dozen states have proposed legislation that would restrict the use of warrantless cell phone tracking. Cell phone tracing and location data, however, will probably continue to raise difficult legal issues as new technologies create opportunities for new forms of surveillance.

Sources

Amy Gahran, "ACLU: Most police track phones' locations without warrants," CNN Tech, Apr. 3, 2012

Eric Lichtblau, "Police Are Using Phone Tracking as a Routine Tool," New York Times, Mar. 31, 2012

Press Release, "ACLU Releases Cell Phone Tracking Documents From Some 200 Police Departments Nationwide," Apr. 2, 2012

United States v. Jones, No. 10-1259, U.S. Supreme Court, Jan. 23, 2012