Legality of Mobile Phone Tracking Still Unclear Despite Supreme Court GPS Decision

The Supreme Court’s blockbuster GPS decision Monday afforded American’s new constitutional privacy protections against warrantless government tracking.

But the justices stopped short of clearly spelling out how wide those rights actually are — or when exactly a warrant would be needed.

The case tested whether the police may secretly attach a GPS device to a vehicle and track its every move without a probable-cause warrant. The judges made it clear that the physical act of putting a tracker on the vehicle constituted a search and that police would be wise to get a proper search warrant, even though the justices didn’t outright say they had to.

But police GPS tracking via cloak-and-dagger methods seems almost quaint given how many of us now voluntarily carry tracking devices — aka mobile phones.

So for many of us a more interesting legal question is, does the government need a warrant to track my location in real time via my mobile phone?

The answer to that question has never been fully resolved by the Supreme Court, mostly because the government prefers the legal uncertainty that lets it track Americans when it wants to without having to prove probable cause to a judge. And the high court’s majority decision Monday gave little guidance on how it might rule on the issue, which is meandering in the lower courts.

That mobile-phone surveillance issue eventually will make its way to the Supreme Court, but perhaps not for years, as the Justice Department is finally appealing a case it had lost, meaning that an appeals court likely will grapple with the issue later this year.

The Obama administration contends that law enforcement has the legal right to get stored locational data and ongoing, real-time tracking information from your cellphone carrier simply by stating that the info is relevant to an investigation. Courts are mixed on whether a warrant based on probable cause is required, and the opinions are rarely seen since these orders mostly show up in sealed proceedings (so as not to tip off people being investigated).

Among other things, the cases hinge on the Obama administration’s position that Americans have no expectation of privacy in their public movements, or in the information they provide to a company providing them services (the so-called Third-Party rule).

In a lone concurring opinion Monday, Justice Sonia Sotomayor suggested it was time do do away with the legal doctrine, stemming from 1976 Supreme Court precedent, that Americans do not have a reasonable expectation of privacy if their information is in a third party’s hands.

“This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks,” Sotomayor wrote.

For the moment, federal investigators often get judges to let them track Americans in real time by simply stating how the information might be relevant to an investigation, when in fact there might be no reasonable suspicion or probable cause at all that the target committed any crime.

“This is a commonly used technique,” Catherine Crump, an American Civil Liberties Union staff attorney, said of the government collecting mobile-phone users’ coordinates. “If this doesn’t happen tens of thousands of times a year, I’d be shocked.”

Until last year, the Justice Department has avoided appealing losing decisions to prevent the issue from going up the legal food chain to the Supreme Court, the ACLU’s Crump wrote in a recent blog post.

Here’s how that happens: Federal agents track people without a warrant, and in some instances, are slapped down by some district courts for this (in our view and in the view of these district courts) unlawful behavior. But they refrain from taking those losses to the courts of appeals, perhaps because a ruling that they need a warrant would then become the law of the land in the territory of that appeals court, and they want to be able to continue to engage in warrantless cell phone tracking whenever they can.

As Crump described it, Texas Magistrate Stephen Smith in 2005 “practically begged” the Justice Department to appeal losses when he published an opinion rejecting the feds’ legal arguments. Smith wanted the authorities to appeal “so that authoritative guidance will be given the magistrate judges who are called upon to rule on these applications on a daily basis.”

Six years after Magistrate Smith’s plea, the Obama administration has finally appealed a lower court decision that said cellphone data “may be acquired only by a warrant issued on probable cause.”

It’s not clear how the justices would rule if it got such a case, as Monday’s decision provided little guidance on the topic.

“The effect of this decision on other intrusive kinds of technology that do not encroach into a person’s private property is unclear,” said Bennett Gershman, a Pace Law School constitutional scholar.

Justice Antonin Scalia wrote for the majority that “the present case does not require us to answer” whether police need a warrant to employ GPS monitoring of targets “without an accompanying trespass.” He said the court may have to “grapple” with that issue “in some future case where a classic trespassory search is not involved.”

What’s more, when the justices argued the GPS tracking device case in November, Justice Samuel Alito noted that social networks are changing Americans’ expectations of privacy, which might alter the legal landscape on whether warrants would be required. Joined by three other justices, Alito reiterated that point in Monday’s opinion.

Dramatic technological change may lead to periods in which popular expectations are in flux and may ultimately produce significant changes in popular attitudes. New technology may provide increased convenience or security at the expense of privacy, and many people may find the tradeoff worthwhile. And even if the public does not welcome the diminution of privacy that new technology entails, they may eventually reconcile themselves to this development as inevitable.

So for the moment, despite the justices’ Monday ruling, it remains unclear under what circumstances the authorities would need a warrant to attach a GPS tracking device to a vehicle — even though any law enforcement agency that has any sense will get one so their case isn’t thrown out by an unsympathetic judge or appeals court. The government told the justices that it has secretly attached GPS devices without a warrant “thousands” of times.

And it might be a long time before a mobile-phone tracking case reaches the top court — meaning the authorities will likely continue obtaining that locational data for years to come without needing to actually have a good reason to suspect the targeted person committed any crime.

Photo: SnoShuu/Flickr