A ruling in the US Court of Appeals has now given law enforcement officers to right to obtain location data from the mobile phone of a suspect, without the need for a warrant. The case involves the conviction of Melvin Skinner, a drug trafficker who was part of a cross-country, large-scale drug operation.
While appealing his many convictions, Skinner put forth the argument that the circumstances of his apprehension and arrest were in violation of the Fourth Amendment. He had been tracked by location data taken without a warrant from the pay-as-you-go mobile phones he had been using as part of the drug trafficking operation.
However his appeal was quashed by Judge John Rogers, who wrote: ”There is no Fourth Amendment violation because Skinner did not have a reasonable expectation of privacy in the data given off by his voluntarily procured pay-as-you-go cell phone… If a tool used to transport contraband gives off a signal that can be tracked for location, certainly the police can track the signal.”
The Stored Communications Act of 1986 gives the law enforcement officers a certain amount of legal wiggle-room in this situation. The Act states that while authorities can’t receive the actual contents of electronic communication (the conversation itself), they can find out where it occurred and between whom.
This reasoning has been increasingly used by police in recent years to obtain location data that more or less turns a suspect’s phone into a tracking device. In the past this information would only have been (legally) accessible through a probable-cause-driven warrant.
As you may imagine, this ruling is not without its opposition. In an email to Ars Technica, Hanni Fakhoury, a staff attorney with the Electronic Frontier Foundation, said: ”In fact, the government’s use of a pen register and a trap trace device (called a “hybrid order) to obtain the info is something that has been extensively litigated and disputed… The fact the Sixth Circuit [a branch of the Court of Appeals] didn’t mention that or go through any of the legal analysis or even note that this is a hotly contested legal issue is simply (to borrow a term I saw on Twitter) ‘lazy.’”
Recently a fair few of these blogs have focussed on the question of privacy vs. criminal apprehension. What are your views on this issue? If the police cannot track a suspect then will that render the idea of detective work redundant? In order to get the warrants required for higher-level surveillance, you need to present a strong enough case, and that in turn requires at least a superficial invasion of privacy.