Anyone who’s heard Chief Justice Roberts and Justice Scalia try to figure out text messaging (“I thought, you know, you push a button; it goes right to the other thing” is an actual quote) probably has an inkling of how hard it is to reconcile the law with constantly-evolving technologies. Over the past few years, one particular issue has plagued the courts: Does the government need a warrant to access a cellphone user’s location records?
While some courts ruled that the mere act of turning on one’s cellphone implies that they’re “voluntarily” transmitting their location to their cellphone provider and waiving the expectation of privacy, Ars Technica reports that in the Eastern District of New York, Judge Nicholas Garaufis issued a 22-opinion yesterday saying otherwise. The case revolved around the federal government’s request to order Verizon (VZ) Wireless to give them access to more than 113 days of location data from a suspect’s cellphone. The feds cited 1986’s Stored Communications Act, which merely requires law enforcement to demonstrate that records are “relevant and material to an ongoing criminal investigation.”
Judge Garaufis, however, ruled against the feds, maintaining that law enforcement can’t obtain months of location data without a warrant.
“The fiction that the vast majority of the American population consents to warrantless government access to the records of a significant share of their movements by ‘choosing’ to carry a cell phone must be rejected,” he wrote. “In light of drastic developments in technology, the Fourth Amendment doctrine must evolve to preserve cell-phone user’s reasonable expectation of privacy in cumulative cell-site-location records.”
The ruling breaks with precedent from some courts to side with the third-party doctrine, which holds when Americans disclose information to a business like a phone company (or, say, a bank), they waive their Fourth Amendment rights. Where third parties are concerned, the courts historically only protect the content of the communications (like the audio portion of a phone call) and not the metadata (like the number dialed). Judge Garaufis called that framework bogus:
“There is no meaningful Fourth Amendment distinction between content and other forms of information, the disclosure of which to the Government would be equally intrusive and reveal information society values as private.”
Nonetheless, considering all the feds need is a warrant, before you leave the house with your cellphone, it might not hurt to ask yourself: What would Stringer Bell do?
