CERDAFIED - When you use your cell phone, do you expect privacy? Often our conversations are in ear shot of other people, and no matter how discreet we try to be, someone is able to overhear conversations. We know there is a trade off, losing some privacy while speaking in public but gaining the convenience to stay in touch with family, friends and businesses.
How do you feel about someone tracking your whereabouts using your phones GPS device?
How about without a warrant?
It would seem reasonable to use the GPS device to track a missing person, whose family reported them missing. The benefits are clear. However, when the government and law enforcement uses our cell phones to track our whereabouts, without a warrant, you can imagine the type of abuse this will generate.
At the government’s or law enforcement’s request, the phone company will send out a signal to any cell phone connected to its network, and ping the user, determining their location. In 2011, law enforcement agents pinged users over eight million times. Sprint was their sole service provider. Do you think they are abusing eight million users right to privacy?
The Obama administration argues that there is no “reasonable expectation of privacy” in regards to a person’s cell phone GPS data. They do not believe they need a warrant to request cell phone company records particularly when they want to track someone using signal towers. A customer’s movements and location should be made available without road blocks caused by our 4th Amendment rights.
In the DC District Court, a document was filed September 4th, by the government lawyers who laid out their case for tracking of citizens without warrants. In a re-trial of United States v. Jones an accused drug dealer’s conviction was thrown out by the Supreme Court due to violations of his 4th Amendment rights. The high court held that warrantless installation of tracking devices on cars was unconstitutional so the government is shifting their focus to Jones’s cell phone tracking data.
Justice Antonin Scalia wrote. “We hold that the government’s installation of a GPS device on a target’s vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a ‘search,’” speaking for the five-justice majority.
In response to the ruling, the FBI pulled the plug on 3,000 GPS-tracking devices. However, they requested that the devices be turned on again in order to locate and retrieve them.
The government argues, “A customer’s Fourth Amendment rights are not violated when the phone company reveals to the government its own records that were never in the possession of the customer.
“When a cell phone user transmits a signal to a cell tower for his call to be connected, he thereby assumes the risk that the cell phone provider will create its own internal record of which of the company’s towers handles the call. Thus, it makes no difference if some users have never thought about how their cell phones work; a cell phone user can have no expectation of privacy in cell-site information.”
They further suggested that, “Defendant’s motion to suppress cell-site location records cannot succeed under any theory. To begin with, no reasonable expectation of privacy exists in the routine business records obtained from the wireless carrier in this case, both because they are third-party records and because in any event the cell-site location information obtained here is too imprecise to place a wireless phone inside a constitutionally protected space,” in a letter to the judge presiding over the second trial.”
In a brief submitted to the Ninth Circuit by the Department of Justice, they argue that “requiring a warrant and probable cause would seriously impede the government's ability to investigate drug trafficking, terrorism and other crimes."
The majority of the Supreme Court opinion in US v. Jones focused on the fact that the agents had trespassed when placing the GPS device on a car, compounding the violation of Jones rights.
With the justices concurring on the basic principle that a person has a reasonable expectation of privacy, even if those movements are in public, the FBI, CIA, and Homeland Security will be looking at the implications of their opinion.
It is clear that the Obama administration sees our 4th Amendment rights as nuisances to be done away with. They want to make use of satellites, drones, infrared, and any other technological devices and advances made available.
The American Civil Liberties Union disagrees. "The warrant requirement is especially important here given the extraordinary intrusiveness of modern-day electronic surveillance. Without a warrant requirement, the low cost of GPS tracking and data storage would permit the police to continuously track every driver.”
The Obama administration’s argument against a motion filed to suppress the defendants cell phone location data, clarifies our governments position that the burden of privacy is on the person, and the government will use any means necessary to gather “third-party records” as evidence. We should have no expectation of privacy.
Circuit Judge Reinhardt, concurred with Chief Judge Kozinski’s dissent, stating, “I have served on this court for nearly three decades. I regret that over that time the courts have gradually but deliberately reduced the protections of the Fourth Amendment to the point at which it scarcely resembles the robust guarantor of our constitutional rights we knew when I joined the bench.”
He added, “These decisions have curtailed the “right of the people to be secure … against unreasonable searches and seizures” not only in our homes and surrounding curtilage, but also in our vehicles, computers, telephones, and bodies — all the way down to our bodily fluids and DNA.”
The government continues to play cat and mouse with the Constitution and the Supreme Court. Our right to privacy is the big cheese in the trap for this administration. Voting smart, is the guard dog in this battle.
(Lisa Cerda is a contributor to CityWatch, a community activist, Chair of Tarzana Residents Against Poorly Planned Development, and former Tarzana Neighborhood Council board member.)
-cw
CityWatch
Vol 10 Issue 74
Pub: Sept 14, 2012
