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Is Tracking Cell Phone Use Location Information Unconstitutional?

The government has asserted that location data collected from mobile phones may not be constitutionally protected. As such, people throughout California and the United States may have their records subpoenaed by the government without probable cause.


“Consumers may view their cell phones as their personal property,” explained California personal injury lawyer James Ballidis. “Their records, however, may not be constitutionally protected.”


An article recently published in Wired magazine indicated that the administration of President Barack Obama considers user cell phone location data as third-party property that may be viewed by the government without a warrant and/or without probable cause. Thus, according to the administration, consumers should have no reasonable expectation of privacy concerning location data service providers collect as a result of their cell phone use. A legal precedent for such reasoning was set in a 1976 Supreme Court ruling categorizing bank records as third party property for which account holders had no right to privacy. 


The government is, in effect, taking the position that phone companies can and should be able to turn over data on a person’s location to the government without any type of protection in place for the consumer and without any requirement that the government have a reasonable suspicion of wrongdoing or probable cause to ask for the records. This, the government argues, is not a violation of the Fourth Amendment because people had no right to believe their information would be kept private in the first place. 


This position may have serious consequences for the privacy of cell phone users. Contrasting the government’s argument to a recent Supreme Court ruling concerning the use of GPS devices by law enforcement may elucidate why one method of tracking is viewed as constitutional and not the other. The Supreme Court issued the decision regarding the use of GPS tracking devices in a case called United States v. Jones, in which it required law enforcement to obtain probable cause warrants in order to attach GPS devices to vehicles. Decided in 2011, the court reiterated that the Fourth Amendment protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The court went on to indicate that the physical intrusion that came with attaching a GPS was an encroachment on a person’s private property and thus constituted a search. 


In the case of the use of cell phone records, no devices are being affixed to a person’s property and, in fact, the person’s cell phone is not being tampered with or affected in any way. The individual is using the cell phone without any type of interference from the government and it is in the natural course of doing business that the cell phone provider track the location from which calls originate. As such, it is necessary to determine whether it is constitutional for law enforcement to be able to have access to data obtained by the cell phone company. 


Unfortunately, the Constitution doesn’t expressly guarantee privacy, although protections for privacy have been read into the due process clause as well as implied by the Fourth and Fifth Amendment. There is also, of course, nothing in the constitution that provides any explicit guarantees regarding privacy in a digital age since the issues faced now are concerns that could not have been imagined by the founders of the country. There is nothing except the decisions of the Court or of the legislature to stop government from taking your cell phone records without your permission, and there is a very real chance that this will be deemed acceptable without probable cause. People, therefore, may lose more and more of their privacy rights in exchange for the free and open flow of information in the digital world. 


Additional articles on this and other legal subjects are available to the public free of charge through our office’s Preferred Friends and Clients Program.


If you would like to request one of these free resources, or to speak with a California personal injury lawyer, feel free to call 866-981-5596. 

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