DOJ Official: Any Privacy Protection is Too Much Privacy Protection for Cell Phone Tracking

BY HANNI FAKHOURY, Electronic Frontier Foundation
EFF.org
May. 06, 2012

Jason Weinstein, a deputy assistant attorney general in the Department of Justice's criminal division, told a panel at the Congressional Internet Caucus Advisory Committee's "State of the Mobile Net" conference yesterday that requiring a search warrant to obtain location tracking information from cell phones would "cripple" prosecutors and law enforcement officials. We couldn't disagree more.

For years, we've been arguing that cell phone location data should only be accessible to law enforcement with a search warrant. After all, as web enabled smart phones become more prevalent, this location data reveals an incredibly revealing portrait of your every move. As we've waged this legal battle, the government has naturally disagreed with us, claiming that the Stored Communications Act authorizes the disclosure of cell phone location data with a lesser showing than the probable cause requirement demanded by a search warrant.

Since the new year, a number of significant developments has led to increased awareness on this important topic. First, the Supreme Court issued its landmark decision in United States v. Jones which held that the warrantless attachment of a GPS device on a car violated the Fourth Amendment's right to be free from unreasonable government searches. In concurring opinions, Justices Sotomayor and Alito both noted that technology had the power to shrink privacy, particularly with respect to locational privacy, as the information gleaned from web enabled smartphones supplanted the need for law enforcement to physically install GPS devices in order to track someone. Then in March, we filed an amicus brief along with a number of other civil liberties organizations, urging the Fifth Circuit Court of Appeals to rule that cell phone location data requires a search warrant. In April, the ACLU released the results of a coordinated FOIA request that found law enforcement officials throughout the country were routinely obtaining cell phone location tracking information with differing legal methods and standards, and were frequently getting this information without a search warrant.

Its this last point -- the differing standards for disclosure and legislative attempts to make those standards uniform -- that sets up Weinstein's comments (you can hear the full audio here). Noting that Jones requires a warrant for GPS data, but that courts have reached conflicting opinions on whether a search warrant is necessary for cell phone location tracking records that are held by wireless company providers, he rightfully noted "there really is no fairness and no justice when the law applies differently to different people depending on which courthouse you're sitting in." But unfortunately, the DOJ's solution for this problem is for Congress to say that cell phone location tracking records held by third parties -- typically the cell phone providers -- are not subject to the search warrant's probable cause requirement, as it would "cripple" law enforcement. To be clear, despite Weinstein's comments that he's only speaking for himself, DOJ's explicit position is that no warrant is necessary, as that's what they've consistently told courts, including the Fifth Circuit.

The problem with the DOJ's position is that it fails to take into account privacy. The only way to ensure "fairness" and "justice," is to demand that our Fourth Amendment rights not be violated by law enforcement working closely with cell phone providers to access your location information without your knowledge. We've already seen that despite the ruling in Jones, law enforcement and the wireless industry are finding ways to continue their pre-Jones practices of warrantless surveillance amid a stunning lack of transparency. We're slowly seeing legislative action in the right direction on these important issues. On the federal level, Senator Ron Wyden (D-Or) has proposed the GPS Act, that would require law enforcement to obtain a search warrant to access location information. In California, we sponsored a bill with the ACLU of Northern California, to require law enforcement to get a search warrant anytime it wants location information about another person in California. And earlier this week, Representative Ed Markey (D-Mass) sent a request (PDF) to the biggest wireless carriers, demanding information about their relationship with law enforcement.

Requiring the police to obtain a search warrant -- the traditional method for balancing law enforcement needs with individual privacy -- and demanding the wireless industry be transparent about how they deal with law enforcement requests for location information are critical steps in the right direction, towards "fairness" and "justice," location privacy and transparency.