In one of my all-time favorite TV shows, the HBO drama “The Wire,” detectives long stymied in their attempts to connect the leaders of a drug crew to the operation’s street-level sales finally cracked the case using a device that intercepted signals relayed between cellular handsets and cell towers. Though they had a warrant to conduct their remote surveillance, a ruling this week by a U.S. federal appeals court says that real world police don't.
On 14 August, the Sixth Circuit Court of Appeals in Cincinnati, Ohio, ruled 2 to 1 that a law enforcement agency does not need a warrant track the location of a suspect via the signals emitted by prepaid, no-contract cellphones (known colloquially as “burners”); such tracking, the court said, does not violate Fourth Amendment protections against illegal searches.
The judges were hearing the case of Melvin Skinner, who was convicted of drug trafficking and money laundering after his 2006 arrest while in possession of more than 500 kilograms of marijuana. U.S. Drug Enforcement Agency (DEA) agents homed in on Skinner—who was taking a cross-country drive in a motor home stuffed with the cannabis—by calling his burner and hanging up. Each time a call connected to the device, which was registered under an alias, the cellular network was able to provide a near pinpoint update on Skinner’s location. The court disagreed with Skinner’s assertion that he had a reasonable expectation of privacy with respect to the data transmitted between his handset and the cellular carrier.
Writing for the majority, Judge John M. Rogers said:
“If a tool used to transport contraband gives off a signal that can be tracked for location, certainly the police can track the signal. The law cannot be that a criminal is entitled to rely on the expected untrackability of his tools. Otherwise, dogs could not be used to track a fugitive if the fugitive did not know that the dog hounds had his scent. A getaway car could not be identified and followed based on the license plate number if the driver reasonably thought he had gotten away unseen. The recent nature of cell phone location technology does not change this. If it did, then technology would help criminals but not the police.”
For their part, federal prosecutors insist that Americans have no expectation of privacy in cell-site records because they are “in the possession of a third party”—the cellular carriers. And because warrantless cellphone tracking doesn’t require a physical interaction with the suspect’s handset, the government reasons, they don’t violate the Fourth Amendment.
But observers are not certain that the government’s argument and the Sixth Circuit Court’s subsequent reasoning will stand up to scrutiny. The Skinner case is "almost like having a safety deposit box in the bank," said Yasha Heidari, managing partner of the Heidari Power Law Group, in a TechNewsWorld article. Heidari explained that the expectation of privacy should not depend on the location of the box and whether its owner has physical possession of its contents.
In a January U.S. Supreme Court ruling in another case involving warrantless surveillance, the high court said that police must obtain a probable-cause warrant before attaching a tracking device to a vehicle in order to monitor a suspect’s movements. A Wired article reports that in the aftermath of that case, where the FBI, without a warrant, bugged the car of Antoine Jones, a Washington, D.C.–area drug dealer and tracked his movements for 28 days, the agency has since ceased attempting to gather data using 3000 other such GPS-tracking devices. Instead, says the article, “the agency is seeking to introduce cell-site data, obtained without a warrant.”
Though the difference in that case hinged on the justices’ finding that placing something on the suspect’s property constituted a search, that reasoning may ultimately be considered legal hair splitting. For better or worse, the issue of surveillance using the wireless signals emitted by consumer electronics will likely be heard by the Supreme Court soon, if for no reason but the lack of cohesion between this week’s Sixth Circuit ruling and a 2010 Third Circuit ruling requiring warrants in order to get cell-site location data. (The Fifth Circuit is currently reviewing a similar case.)
Either way, observers are not moved by the Sixth Circuit Court's desire to limit the advantages that technology affords criminals. The Electronic Frontier Foundation’s Hanni Fakhoury told TechNewsWorld that the circuit court "went out of its way to ensure a criminal isn't constitutionally insulated from obtrusive government surveillance." Framing the issue in its larger context, Fakhoury added that the ruling "…will apply to innocent people as well, who aren't using their cellphones to commit crimes."
Is concern over cellphone tracking by law enforcement simply paranoia? Afraid not. Just last month, a post in this blog, under the headline “Is Your Cellphone Snitching on You?” reported the results of an inquiry by the U.S. Congress which revealed that in 2011 alone, law enforcement agencies made 1.3 million requests for cellphone data—including calling records, location data, and the content of text messages.