An appeals court ruled the Justice Department must tell people how they track suspects by using cell phone data, reflecting the changing attitude of courts where mobile GPS technology is concerned.
A three-judge U.S. Court of Appeals panel in Washington agreed with a 2010 federal court decision about mobile data use. The courts found the U.S. Department of Justice must reveal cases in which people were convicted on information obtained by cell phone data investigators gathered without a warrant.
The case was just one of several that the American Civil Liberties Union, or ACLU, has filed this year. The ACLU maintains law enforcement and the government violate people’s privacy by accessing cell phone data information.
“I highly doubt that the 90 percent of Americans who carry cell phones thought that when they got cell phone service they were giving up their privacy in their movements,” said Catherine Crump, an ACLU lawyer.
The agency argues that even though prosecutors are using suspects’ GPS location data with a judge’s approval, they’re not getting the information with a warrant providing probable cause.
The government likely will appeal the ruling, either to the full appeals court or to the U.S. Supreme Court. DoJ spokesman Charles Miller said it is reviewing the decision and has not decided whether it will appeal.
As police increasingly use cell phone data location information to track down suspects, the DoJ may not want to lose what it considers an important crime-fighting tool.
According to a Reuters survey, several federal agencies — not just the DoJ — are using data gathered on cell phones. Surveys of several U.S. Attorneys’ offices, the Drug Enforcement Agency and the DoJ show about 255 recent cases in which investigators used mobile data.
Courts are starting to rule against this usage. The ruling may show federal judges beginning to agree that using location data may be an unconstitutional violation of citizens’ privacy. It may also mean judges could start to reject evidence based on information gathered through data without a warrant.
Last month, for example, Judge Nicholas Garaufis of the Eastern District of New York rejected a federal agency’s demands ordering Verizon to turn over location data about a suspect’s cell phone. According to the federal Stored Communications Act, law enforcement must show someone’s phone records are material to an ongoing criminal investigation in order to make getting phone information legal.
But Garaufis said releasing the data violates the Constitution’s “probable cause” standard, meaning police need a warrant to search phones.
In another case, police in Maryland wanted a warrant to get a suspect’s GPS information so they could track him down through his phone. But a federal judge refused the request, saying police use warrants to gather information to investigate a crime, not to track down a suspect.
These cases may be the most recent concerning location data and crime investigations. But because the ACLU has several more cases pending concerning the use of cellphones to track down suspects, the courts may be busy for years deciding whether people’s right to privacy should come along with the privilege of using mobile devices.