GPS, Cell Records and Warrants -- Oh My!
Can your phone's location data be used as evidence in court trials? The Supreme Court and the Obama administration are wrangling over the issue, and the fallout will shape the legal landscape for years to come.
When the Supreme Court made the highly-anticipated ruling earlier this year that law enforcement's placement of a GPS tracking device on a suspect's vehicle violated the Fourth Amendment's protection against unreasonable search and seizure, nobody, much less the average person, was sure of the far-reaching ramifications.
During the case's subsequent re-trial briefings, both the federal government and the defense team brought issues to light, forcing the courts and the wireless industry to re-examine what information and records -- like GPS data and cell phone records -- constitute a "search," and establish when law enforcement needs a warrant to access the data as the courts navigate the digital frontier.
Two of the prominent players in this high-stakes debate are familiar -- Judge Antonin Scalia and President Barack Obama -- but their stances on the issues are surprising to many, illustrating how the intersection of law and technology can create unexpected complications.
In its January ruling, the Supreme Court's Associate Justice Antonin Scalia said the government's installation of a GPS device on the vehicle of Washington, D.C. nightclub owner Antoine Jones, and its use to monitor the vehicle's movements, constitutes a search, and in that case requires a warrant.
Scalia was joined in by Chief Justice John Roberts, and Justices Anthony Kennedy, Clarence Thomas, Sonja Sotomayor and Samuel Alito, in scaling back the government's reach and upholding citizen protections.
The Fourth Amendment, commonly referred to as the "search and seizure" amendment, focuses on places and items in which an individual has a legitimate expectation of privacy, protecting unlawfully seized items from being used as evidence in criminal cases. In the Jones case, law enforcement tracked his movements for a month, gathering evidence to convict him of conspiring to sell cocaine. The defendant was sentenced to life in prison before the appeals court overturned the conviction saying law enforcement should have a warrant for that kind of information.
Before the nation's highest court, Jones' lawyer argued the issue was cut and dry -- if law enforcement wants to use GPS devices to track suspects, they need get a warrant. Meanwhile, the government's U.S. solicitor general countered there are no constitutional limits to the government's ability to track people's movements in public, pointing out Jones' car was followed on public streets.
What's Happening: The Supreme Court ruled that usage of GPS tracking of suspects required warrants, and that a warrant is required for law enforcement to use them in the course of their work. However, the opposing side is not giving up, and is now seeking to broaden what and how mobile data can be used -- and what expectation of privacy we can expect.
Earlier in September, the Obama administration moved beyond warrantless GPS devices to cell phone data in the Jones case, broadening its position that the public has no reasonable expectation of privacy in these records and authorities can obtain documents detailing a person's movements from wireless carriers without a probable-cause warrant.
As the government prepares for Jones' re-trial, the administration is arguing that such data, like banking records, are "third-party records," meaning customers have no right to keep them private.
What's Really Happening: Since the GPS data was deemed to be illegally obtained and cannot be used as evidence in this case, the government is seeking to introduce cell site data in its place in an attempt to chronicle Jones' movements and whereabouts during relevant times. The defense is expected to argue that the way the government obtained the cell site data is in violation of the Fourth Amendment and therefore must be suppressed.
The cell-site information was not introduced at trial, as the authorities used the GPS data for the same function.
The ongoing discussions and expected court ruling on the issue will fuel the debate about warrantless cell-site data much in the same way the first trial highlighted the issue of GPS use, and how it all shakes out will have significant ramifications on whether or not your cell phone data can be used as evidence in a court trial.
For example, after the highest court's ruling on GPS was handed down, the FBI pulled the plug on approximately 3,000 GPS-tracking devices and many predict a decision on the cell data will have similar fall-out.
What's Next: The Obama administration is expected to fight the defense's moves to suppress the cell-site location records by comparing them to third-party records, which, if successful, would put the data outside the realm where the Constitution guarantees a reasonable expectation of privacy.
Just as the lower courts were mixed on whether the police could secretly affix a GPS device on a suspect's car without a warrant, the same is now true about whether a probable-cause warrant is required to obtain so-called cell-site data. Also, during the investigation, a lower court judge in the Jones case authorized the five months of the cell-site data without probable cause, based on government assertions that the data was "relevant and material" to an investigation, which may play a role in determining how to handle the cell-phone data.
Will the courts decide, in conjunction with Scalia and his five-justice majority in the GPS case, that the government's access to the cell-site location is a similar violation of privacy?
In a pre-trial proceeding filing earlier in September, Jones' attorney said the government has five months' worth of a different kind of location tracking information on his client, obtained without a warrant, which chronicles where Jones was when he made and received mobile phone calls in 2005. For the defense, the issue is clear: the government is simply trying to do with this cell site data what it couldn't do with the subsequently suppressed GPS data.
For its part, the Obama administration is claiming the GPS ruling shouldn't have a bearing since it is "wholly inapplicable" when it comes to cell-site data.
The administration noted that the high court said the physical act of affixing a GPS device to a vehicle amounts to a search and generally requires a warrant. "But when the government merely compels a third-party service provider to produce routine business records in its custody," the government wrote, "no physical intrusion occurs."
The Takeaway: The Jones trial and retrial illustrates the complexity of issues involved with technology's place in public safety, justice and privacy. The ink on the Supreme Court's decisive ruling tossing the GPS evidence wasn't dry before other considerations, like the cell-site data, arose to fill in the gap.
This cycle of formal legal rulings and technology innovations highlight the difficult dance and contradictions between the two. Technology is future-focused, advancing at breakneck speeds and smashing previously established norms and practices, while legal precedent is often a drawn-out process, valuing historical tradition and deliberation. Technology is advancing at a seemingly unprecedented pace, and courts draw heavily on moving back to past precedents for rulings.
The ensuing intersection presents daily challenges to local and state law enforcement who on a daily basis aren't as focused on constitutional protections as on keeping the public safe.
States like California, New York and Maryland are among many creating a patchwork of rules relating to warrants and searches of tech data in the absence of substantial and repeated higher court rulings to make appropriate policy.
Law enforcement agencies, which generally prefer more expansive policies concerning search and seizures, are themselves trying to discern effective policies to conduct their work and will fall within legal boundaries by the court systems.
This is especially true in light of social media, another technological innovation weaving itself into the fabric of everyday life and being used by law enforcement to track and convict suspects. While the Jones case doesn't address this specific digital trend, it is certain there will be one that does in the future. In the meantime, law enforcement will likely continue to mine social media and employing other digital tools in its quest to serve and protect, raising new questions on where to draw the line.
In the original GPS tracking case, Justice Stephen Breyer cautioned against allowing the Obama administration free reign to use GPS tracking without a valid warrant, saying if this is permitted, "Then there is nothing to prevent the police or the government from monitoring 24 hours a day the public movement of every citizen." This comment touches the heart of these seemingly complex and often technical rulings -- while they address a specific case, their application will reach far beyond the courtroom halls.
The Supreme Court's GPS ruling offered clarity, even if it was short-lived, but similar-yet-different technology innovations will continue to challenge the legal framework that governs the use and limits of the government's powers. And, when they reach the nation's highest courts, the decisions about them have the potential to affect everyone. ♦
Categories: In Brief