In 2010 a court ruled against government requests for mobile location data, declaring that “[c]ompelled warrantless disclosure of cell site data violates the Fourth Amendment.”
On appeal federal prosecutors are asserting that they should be able to obtain records revealing the movements of mobile users over a 60-day period, even if the phones are off, without first having to ask a judge to approve a warrant.
The Justice Department argued in February that its position is “consistent with the Fourth Amendment because a customer has no privacy interest” in GPS location records since that information has been “voluntarily conveyed” to the wireless provider.
The Fourth Amendment protects against “unreasonable search and seizure,” and while it’s unclear if a citizen’s cell phone data is protected, the ACLU reports that all levels of law enforcement routinely track cell phones.
In July Congressman Edward J. Markey released a report revealing that authorities made 1.3 million requests to wireless carriers for customer information last year, and said that the number of requests is increasing every year.
McCullagh reports that the Electronic Frontier Foundation (EFF), which is arguing the pro-privacy side before the Fifth Circuit Court of Appeals, will bank on the January opinion of Supreme Court Justice Antonin Scalia in a case that found police installation of a physical GPS bug on a car for 28 days violated the Fourth Amendment.
In the majority opinion, Scalia said: “It may be that achieving the same result through electronic means, without an accompanying trespass, is an unconstitutional invasion of privacy, but the present case does not require us to answer that question.”
This case will most likely require it as EFF lawyer Predicts Fakhoury told CNET that this is “exactly the type of situation the Supreme Court is going to get involved in.”