The Law Q&A | Cellphones and the Fourth Amendment

The Law Q&A | Cellphones and the Fourth Amendment

Is the data of my cellphone location protected from search and seizure by the government?

Heck yes.

Recently the U.S. Supreme Court ruled that cellphone location information is protected by the Fourth Amendment of the federal Constitution, and generally will require a warrant before being seized.

The Fourth Amendment protects persons from unreasonable searches and seizures of themselves or their property by governmental authorities. Generally, the government must get a judge to issue a warrant before conducting a search of a person's belongings.

Now, such "belongings" includes information of cellphone location held by third-party cellphone service providers.

The case arose from a series of robberies at stores and other places in the Detroit area.

Prosecutors got a conviction of the accused robber based in part on the location of the defendant's cellphone usage from records held by his provider. The location of the phone use was reportedly near in place and time to the robberies.

Without a warrant, the government obtained records from 127 days of usage held by the service provider.

The 5-4 majority ruling was surprisingly led by conservative Chief Justice John Roberts, who noted that it did not matter if the records were in the hands of a third party. Court observers note that that aspect of the ruling is a significant, if rare, break from earlier rulings. Prior cases had the Supremes finding that property held by third parties generally lose a privacy protection.

The key to all Fourth Amendment seizures is whether there is an expectation of privacy. The government argued that the info on the location of phone usage was owned by the service provider companies, not the individual, and thus had no privacy expectation. That argument held no sway for the majority. Long-term tracking of a person's whereabouts by use of a cellphone does carry such expectation, said the court.

Thus, not all expectation of privacy should be lost because one uses digital technology. The court noted that there will be exceptions to the warrant requirement of one's digital records, such as pursuing a fleeing suspect, or preventing imminent harm to people or property.

But the court also noted there are 400 million phones in use in the nation. Digital use is now ingrained in the very fabric of nearly every moment of our industrialized existence. Cellphones are part and parcel of daily activity.

In this digital age, the tracking of a person through their use of technology, and whether such use is a waiver of privacy, has long been a proverbial "hot button" issue.

The legal issues of ownership and privacy privilege of one's electronic use remain profound and evolving ones. The government freely used your digital use to monitor your whereabouts. Until now.

Cell service providers continue to buy and sell your phone use info to retailers to manipulate you in consumer purchases. Now digital info is being used by third parties to manipulate your political vote.

That hot button is getting hotter.

Brett Kepley is a lawyer with Land of Lincoln Legal Assistance Foundation. You can send your questions to The Law Q&A, 302 N. First St., Champaign, IL 61820. Questions may be edited for space.

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