Tech Law

Court Ruling Puts Stamp of Approval on Warrantless Cell Tracking

Law enforcement agencies may be able to freely track cellphone users without first getting a probable-cause warrant thanks to a ruling handed down by the United States Sixth Circuit Court of Appeals in San Jose on Tuesday.

The 2-1 ruling in the case of convicted drug trafficker and money launderer Melvin Skinner stated that the police did not breach Skinner’s Fourth Amendment rights by tracking his location in real time through the signals his cellphone sent to cell towers.

The ruling focused on prepaid phones, or “burners,” but the court “hinged its analysis on the fact that Skinner was driving on public streets and transmitting his data by using a cellphone,” Hanni Fakhoury, a staff attorney at the Electronic Frontier Foundation (EFF), told TechNewsWorld.

“Any phone that does this, prepaid or not, loses constitutional protection under the … decision,” Fakhoury continued.

The ruling “could be extended to apply to any sort of technology,” agreed Yasha Heidari, managing partner of the Heidari Power Law Group. However, “whether the U.S. Supreme Court would agree is a different question.”

When You Walk Through the Garden …

Skinner was arrested after law enforcement agents tracked his location by calling him, then hanging up. This caused his “burner” to send a signal to the nearest cellphone tower, allowing the agents to establish Skinner’s real-time location. This technique was used to track Skinner as he transported drugs along public roads between Arizona and Tennessee, U.S. Circuit Judge John M. Rogers said in his opinion.

The tracking let U.S. Drug Enforcement Agency agents locate Skinner and his son at a rest stop near Abilene, Texas, with a motor home containing more than 1,100 pounds of marijuana, Judge Rogers wrote.

Skinner was given a 20-year sentence, but he appealed on the grounds that under the Fourth Amendment, which protects people against unreasonable searches or seizures, the DEA agents couldn’t monitor his whereabouts without a probable-cause warrant.

“We believe people have a reasonable expectation of privacy in their movements, particularly when aggregated over an extended period of time, as was done here — three days,” the EFF’s Fakhoury said. “That’s because this data can reveal details of a person’s personal life … and this technology has the potential to intrude into the home.”

The Skinner case is “almost like having a safety deposit box in the bank,” Heidari Power Law Group’s Heidari told TechNewsWorld. “A reasonable person would expect that the contents of that box would remain secure and private, and that the government would need a warrant to inspect the contents, irrespective of the fact that the box is being held by a third party.” Those contents are the data logged by Skinner’s cellphone carrier.

… You Better Watch Your Back

The Sixth Circuit Court’s opinion “went out of its way to ensure a criminal isn’t constitutionally insulated from obtrusive government surveillance,” the EFF’s Fakhoury remarked. “But its holding will apply to innocent people as well, who aren’t using their cellphones to commit crimes.”

The decision will be binding on states in the Sixth Circuit, which includes Kentucky, Michigan, Ohio and Tennessee, but is only applicable to federal offenses and cases, Heidari pointed out. “Different circuits employ different tests, and what may be acceptable in California, in the Ninth Circuit, may be unacceptable in Georgia, in the 11th Circuit.”

On the other hand, there are circumstances in which this ability to track cellphones “will be very useful to law enforcement,” such as using cellular data to find witnesses to, and suspects in, gun assaults, to track violent fugitives, and track pedophiles, Nick Selby, a Texas police officer and manager of the Police-Led Intelligence blog, told TechNewsWorld.

“It is not perfect, but the guidelines are now much clearer as to the extent of the government’s ability to monitor location than they have been in the past,” Selby stated.

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