“Can you hear me now? Good?”
“Can you hear me now? Good!” is perhaps one of the most recognizable quotes from a Verizon Wireless television commercial which advertises the extent and reliability of its cell phone coverage, but cell phone companies are providing more than just reliable service for their customers nationwide. Local law enforcement agencies (LEA) around the country have been using cell phone tracking as a routine tool in criminal investigations without first obtaining search warrants based on probable, and cell phone service providers have been quietly providing such requested information to police departments, for a fee of course.
In the 21st Century, cell phones have rapidly developed from simple mobile electronic devices used for voice calls to portable computers that have the capacity to communicate through various virtual media and to store massive amounts of information. Indeed, my smart phone contains not only an entire telephone directory with the family, friends, and acquaintances but also my school and work calendars, files, music, several email accounts, internet access with history, GPS navigation, access to Facebook, and other social networking websites. The wide-range of personal information that can be accessed from a cell phone could virtually map one’s daily life, and the data that could be gathered by cell phone service providers from incoming and outgoing phone calls, text messages, photo messages, and GPS tracking is unparalleled. Given the plethora of personal information readily stored and transmitted by such a small, mobile device, it is easy to understand why local law enforcement agencies in many states including North Carolina have found these advances in cell phone technology extremely useful in assisting with criminal investigations. In North Carolina, local LEAs have been using cell phone tracking as a routine tool in criminal investigations-emergency and non-emergency circumstances alike.
Last year, the American Civil Liberties Union (ACLU) made public records requests to local law enforcement agencies throughout the country, “asking them about their policies, practices, and procedures for tracking cell phone records.” Nearly 20% of the more than 200 LEAs responding to the requests were from North Carolina including Raleigh, Cary, Apex, Concord, Charlotte-Mecklenburg, Greensboro, and Winston-Salem. The responses to the public records request ranged from a total disclosure of documents to response letters promising to disclose the specified documents to response letters indicating that such surveillance does not occur without a search warrant.
For example, Maurice A. Cawn, Attorney for the Greensboro Police Department, in his response letter stated, “the Greensboro Police Department does not have the technical capacity to track cell phones (real-)time nor access records regarding where cell phones have been in the past. Mr. Cawn further stated, “the only involvement with such investigative methods have been in some form of assistance with a federal or state agency as the lead investigative agency and which would have obtained a court order[.] . . . [S]uch orders were obtained on the basis of probable cause and the issuing judge ordered that such Order is to be sealed.” Meanwhile, the Raleigh Police Department disclosed hundreds of pages of invoices from various cell phone service providers who tracked cell phones of different individuals. While some of these documents have language suggesting that a court order or subpoena are required for disclosure of the cell phone tracking information, subpoenas can be issued at a standard much lower than probable cause. Ultimately, the issue is whether the production of these documents containing data collected by cell phone service providers constitutes a search under the Fourth Amendment, requiring a search warrant based on probable cause as opposed to a subpoena.
The Fourth Amendment protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” In its latest addition to Fourth Amendment jurisprudence, the U.S. Supreme Court in U.S. v. Jones addressed the issue of whether the installation of a Global Positioning System (GPS) tracking device by police officers to a private citizen’s vehicle constituted a search. The Court held that “the Government’s installation of [the GPS tracking] device on a target’s vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a ‘search.'” Similar to GPS devices, cell phones can be tracked to monitor the movements of the individual person so long as the cell phone is turned on. During oral arguments, Justice Sonia Sotomayor observed, “[the government] could monitor and track every person through their cell phone, because today the smartphones emit signals that police can pick up and use to follow someone anywhere they go.” In response, Justice Antonin Scalia inquired, “Don’t we have any legislatures out there that could stop this stuff?” The U.S. Supreme Court has yet to specifically address the issue of whether the tracking of a cell phone constitutes a search.
Recently, in U.S. v. Flores-Lopez, the U.S. Court of Appeals for the Seventh Circuit addressed the circumstances under which a cell phone could be searched without a search warrant under the Fourth Amendment, specifically when the search is made incident to arrest. Judge Richard Posner, writing the opinion of the Court, astutely observed, “Lurking behind this issue is the question whether and when a laptop or desktop computer, tablet, or other type of computer (whether called a “computer” or not) can be searched without a warrant-for a modern cell phone is a computer.” The advances in cell phone technology present a real challenge to established Fourth Amendment jurisprudence. “I think the biggest mistake is trying to analogize cell phones to existing technologies. A smart phone is not a diary of numbers, a wallet, or really even a phone in the traditional sense,” says Harry Lorello, a rising 3L at Campbell Law School.
In fact, Judge Posner curiously raises many important, yet unanswered, questions relating to the application of the Fourth Amendment jurisprudence to the search of a cell phone, but the Court ultimately holds, “But these are questions for another day, since the police did not search the contents of the defendant’s cell phone, but were content to obtain the cell phone’s phone number.” In his post on The Volokh Conspiracy, Orin Kerr, Professor of Law at George Washington University Law School, contends that “Judge Posner seems to have some sort of graduated scale in mind, in which minimally intrusive searches of phones are okay as a routine matter incident to arrest but more extensive searches require more justification or maybe a warrant.” In addition, Kerr posits, “[Posner’s] opinion deepens the split by adding a new approach to the mix and will help justify the Supreme Court eventually intervening.”
However, the U.S. Congress may provide a legal framework for tracking cell phones before the Supreme Court does. Currently, the Geolocation Privacy and Surveillance Act (GPS Act) has been introduced in both the Senate and the House of Representatives. This bipartisan legislation aims to “provide clarity for government agencies, commercial service providers, and the public regarding the legal procedures and protections that apply to electronic devices that can be used to track the movements of individual Americans.” In particular, the GPS Act “[r]equires the government to show probable cause and get a warrant before acquiring the geolocational information of a U.S. person, while setting out clear exceptions such as emergency or national security situations[.]”
Whether the U.S. Congress or the U.S. Supreme Court provides the much needed legal framework and privacy protections from this almost Orwellian intrusion by local law enforcement agencies, most Americans who own a cell phone would likely object to such unwarranted monitoring by the government, if they only knew about it. “We do know that cell phones can contain a huge amount of our personal data and information and allowing police to fish through a phone that can do things like track our past movements certainly falls under the ‘unreasonable’ category of searches and seizures that the Fourth Amendment was meant to prohibit,” observes Harry Lorello. Perhaps the best question to ask about cell phones is not “Can you hear me now?,” but “Who can hear/see/locate/track/monitor me now?”