On Tuesday, a federal appeals court ruled that suspects have “no reasonable expectation of privacy” when using a pay-as-you go cell phone, so cops need not maintain a warrant in order to track them using location data.
The case in question dealt with Melvin Skinner, the leader of a drug operation who the government tracked down and arrested using GPS location data on his non-contract cell phone. Skinner appealed the case, arguing that the warrantless phone tracking was a violation of his Fourth Amendment rights. But the majority (2-1) of 6th Circuit judges did not see it that way, and argued that the situation was analogous to using cars to trail or dogs to track a suspect. Same concept, but now with modern technology, Judge John Rogers reasoned in his majority opinion.
Earlier this year, SCOTUS ruled in United States v. Jones that law enforcement could not install a GPS tracking device on a car without a warrant. But the text of that ruling was situation-specific, and judges said that because there was “no physical intrusion” of privacy in this case–they were merely using data that was already available based on the nature of GPS technology–the precedent established in Jones could not be applied here.
Slate’s Torie Bosch draws attention to a footnote in the majority opinion clarifying the fact that Skinner’s lack of privacy had nothing to do with the fact he is a criminal and that “an innocent actor would similarly lack a reasonable expectation of privacy in the inherent external locatability of a tool that he or she bought.” This is particularly noteworthy: anyone who has a device that emits location data cannot expect any level of privacy in regards to that data.
As more cases like this get taken to court, it becomes clear that the precedent dictating previous forms of law enforcement can get murkier when modern technology enters the picture. Can the rules governing car chases and hound dogs really apply to complex GPS systems? This is just one instance of how technology, civil liberties, and law enforcement can clash as they attempt to coexist. Like the Jones case, this one far from settles or establishes a standard for the rights to privacy when it comes to GPS data, and similar cases are bound to come up in the future.
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