That whole no warrant needed for your mobile phone location info – not so fast says Federal Court

Back in January and April of this year my colleague Kim LaCapria and I wrote here about a growing trend of state courts what amounts to carte blanche in accessing your mobile phone location data from your provider without the need of a warrant.

First it was California where the California Supreme Court agreed:

“The majority opinion, written by Justice Ming Chin, cited precedents from the U.S. Supreme Court, saying the contents of a cell phone are like the contents of clothing or a cigarette pack found on a suspect’s person. The U.S. Supreme Court has found that those types of searches do not require a warrant under the 14th Amendment to the Constitution, the court said.”

Then along comes April and Kim relates the fact that Michigan State police have the ability using a technology from CelleBrite to make a duplicate of your cellphone contents without the need of a warrant. In her post Kim quotes the ACLU stance on this.

“With certain exceptions that do not apply here, a search cannot occur without a warrant in which a judicial officer determines that there is probable cause to believe that the search will yield evidence of criminal activity,” Fancher wrote. “A device that allows immediate, surreptitious intrusion into private data creates enormous risks that troopers will ignore these requirements to the detriment of the constitutional rights of persons whose cell phones are searched.”

One of the arguments against the police being able to do this is that their actions could violate our Fourth Amendment rights; and for the most part the courts have sided with the police and saying it doesn’t.

However on Monday Judge Nicholas Garaufis, of the Eastern District of New York totally rejected this line of reasoning.

The federal government had asked the courts to order Verizon Wireless to turn over 113 days of location data about a suspect’s cell phone. It did so under a provision of the Stored Communications Act that only requires law enforcement to show that the records are “relevant and material to an ongoing criminal investigation.”

Does the government violate the Constitution when it obtains location data without meeting the Fourth Amendment’s “probable cause” standard? Some courts have found that it does not. But in a 22-page opinion, Judge Garaufis analyzed and rejected these other courts’ arguments, holding that law enforcement needs a warrant to obtain months of location data.

“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.”

via Ars Technica

It’s nice to see that like the judge in Ohio we have a Federal judge who is forward thinking enough to know that technology is a rapidly changing landscape and our interpretations of the Constitution need to be constantly adjusted to keep up with the changes.