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</div><br>August 5, 2013</div><div id="page" class=""><div id="content" class=""><div id="main"><div class=""><div id="blogs" class=""><div id="pagebody" class=""><div id="entry-2000000002367537" class="">
<h1 class="">Why Your Cell Phone’s Location Isn’t Protected by the Fourth Amendment</h1>
<div class="">Posted by <cite class=""><a href="http://www.newyorker.com/magazine/bios/orin_kerr/search?contributorName=Orin%20Kerr" title="search site for content by Orin Kerr" rel="author">Orin Kerr</a></cite></div>
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<p><img alt="cell-phones-tracking-580.jpeg" src="http://www.newyorker.com/online/blogs/elements/cell-phones-tracking-580.jpeg" class="" style="text-align: center; display: block; margin: 0px auto 20px;" height="386" width="580"></p>
<p>In a major decision last week, the Fifth Circuit Court of Appeals <a href="http://www.ca5.uscourts.gov/opinions/pub/11/11-20884-CV0.wpd.pdf" target="_blank">ruled</a>
that the location of your cell phone when you place a call is not
protected by the Fourth Amendment, which guards against “unreasonable
searches and seizures.”</p>
<p>Whenever you make a cell-phone call, your phone provider knows where
you are—it needs that information in order to find your device and
complete the call. Phone companies generally keep records of users’
locations when calls are connected and disconnected. These logs, which
store data about which cellular sites phones connect to, are known as
historical cell-site records. Since most people keep their cell phones
with them, a record of a phone’s location generally provides a good lead
on its owner’s location as well. If the Feds want to know where you
were last Tuesday at 9 <small>P.M.</small>, for example, they can get a pretty good idea by finding out where your phone was.</p>
<div id="entry-more"><p>The important legal question is how much
protection these records receive when the government wants to make
providers turn them over. In other words, what kind of evidence should
the government be required to present in order to get your location
records from a cell-phone company?</p>
<p>Legal protections generally come in two forms: statutory protections
enacted by Congress and constitutional protections recognized by the
courts. Congress has protected historical cell-site records with an
intermediate threshold sometimes called reasonable suspicion. That’s the
same standard it must meet to justify stopping and frisking someone for
suspicious activity. Under Congress’s law, the government generally
needs to go to a federal judge with reasonable grounds for suspecting
that the records reveal a crime in order to access them. </p>
<p>If the Fourth Amendment’s ban on unreasonable searches and seizures
protected cell-site records, the government would be required to satisfy
a higher legal standard known as probable cause in order to obtain the
records—the level of certainty required to arrest someone or to search
their home for evidence. And unlike privacy protections enacted by
Congress, constitutional protections can’t be taken away by a future
legislature.</p>
<p>But in the new decision, the Fifth Circuit held that the Fourth
Amendment does not apply to historical cell-site information; statutory
protections are their only shield. If you want more privacy, the court
suggested, your best options are to call your Congressman or to ask your
phone company to enact a new policy to delete or anonymize its records.</p>
<p>The heart of the court’s reasoning is that there’s a difference
between communicating with the phone company to set up a call and
communicating through the company during the conversation that follows.
When you’re actually talking on the phone, the content of the call
belongs to you and the person you’re talking to—and the phone company
can’t listen in. If the government wants to tap the line, the Fourth
Amendment applies and the government needs a warrant.</p>
<p>But when you place a call, you need the phone company to route and
direct the call over its network, and to do that, your cell phone needs
to communicate with the phone company and disclose its location. That,
the court reasoned, is communication between you and the company. And
the record of whatever information your phone sent to the company
belongs to the company, not to you. If it wants to keep that record for
business purposes, it can. And if the government wants that record from
the phone company, that’s an issue between the two of them—not an issue
between the phone company and you. </p>
<p>The appeals court’s reasoning follows the 1979 Supreme Court decision in <a href="http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=442&invol=735" target="_blank">Smith v. Maryland</a>,
which found no Fourth Amendment protection in the numbers dialed to
place a call. According to that case, when you dial a phone, you’re
communicating to the phone company just like people communicated with a
human operator before phones had dials. The court ruled that while new
technology had automated the process, it made no substantive difference.</p>
<p>As a matter of precedent, the appeals court’s decision accurately
follows Smith v. Maryland. Lower courts are obliged to follow Supreme
Court decisions, and the analogy between dialing numbers and sending
cell-phone locations is pretty close. </p>
<p><a href="http://www.michiganlawreview.org/assets/pdfs/107/4/kerr.pdf" target="_blank">There’s also a subtle wisdom behind the reasoning of Smith and the Fifth Circuit decision</a>.
In a world before communications networks, the Fourth Amendment
protected the inside of your home, but it didn’t apply outside. If you
wanted to meet with someone in person, you had to go outside, where the
police could watch you and learn your movements. </p>
<p>Now, consider the role of the telephone network. Phones <a href="http://www.youtube.com/watch?v=SYpJ1IgGoc0" target="_blank">let your fingers do the walking</a>:
thanks to the network, you don’t have to travel outside to speak to a
friend who is miles away. But your location information, told to the
phone company, is the network equivalent of the kind of information that
used to be exposed to the public—including the police—when you
travelled in person to meet. </p>
<p>To maintain the traditional balance of Fourth Amendment protection
across new technologies, it makes sense for the Fourth Amendment to
protect the contents of calls but not the phone company records about
where and when the call occurred. The contents are like a conversation
in a home, and should remain protected; the records are like the outside
travel, and should remain unprotected. </p>
<p><a href="https://www.eff.org/node/70142" target="_blank">Others argue</a>
that the Fourth Amendment should apply more broadly to keep the
government at bay. Some look to the concurring opinions in the 2012
Supreme Court decision in <a href="http://supreme.justia.com/cases/federal/us/565/10-1259/" target="_blank">United States v. Jones</a>,
which applied the Fourth Amendment to G.P.S. surveillance. In that
case, the police suspected Antoine Jones, a nightclub owner in
Washington, D.C., of drug trafficking. The police wanted to track his
movements to show his involvement in the crime, so they attached a
G.P.S. tracking device to the bottom of a car he drove, and monitored it
for twenty-eight days. The court ruled that installing the physical
device “searched” the car under the Fourth Amendment. Five Justices
added separate views that the twenty-eight days of monitoring was a
search, even if no physical installation occurred.</p>
<p>If tracking the location of a car over time is regulated by the
Fourth Amendment, as five Justices suggested in Jones, why shouldn’t
tracking the location of calls receive the same treatment? That argument
will receive a serious hearing in <a href="https://www.aclu.org/files/assets/2013.07.02_-_doc_60_-_corrected_aclu_et_al._amicus_brief.pdf" target="_blank">other cases</a>
now pending in the federal courts. If other courts agree with the
latter view, the Supreme Court will likely agree to step in and resolve
the lower courts’ disagreement. But don’t expect it to review the Fifth
Circuit’s decision: because of the strange way the Fifth Circuit case
arose, it can’t.</p>
<p>In most Fourth Amendment cases, there are two sides: the searchers
and the searched. Normally, if the government wins in a lower court, the
individual can ask a higher court to review that ruling. But in this
case, the Feds applied for several orders seeking records under
Congress’s privacy statute, and the first judge refused to issue the
orders on Fourth Amendment grounds. The government appealed the denial,
and the Fifth Circuit ruled for the government. But because the orders
have not yet been issued, the government is the only party to the
dispute; no records have been collected yet, and we don’t even know who
the suspect is. Now that the government has won, no one can appeal. (I
filed a <a href="http://www.volokh.com/wp-content/uploads/2012/02/Kerr-Amicus-No-11-20884.pdf" target="_blank">friend-of-the-court brief</a> arguing that the court couldn’t rule on the constitutional issue because of this strange procedure, but the court disagreed.)</p>
<p>The decision is a win for the government and police powers, with the
caveat that other cases are pending and may reach a different outcome.
And if they disagree, it will be up to the Supreme Court to decide.</p>
<p><em>Orin Kerr is the <a href="http://www.law.gwu.edu/Faculty/profile.aspx?id=3568" target="_blank">Fred C. Stevenson Research Professor of Law at George Washington University</a> and a <a href="http://www.volokh.com/author/orin/" target="_blank">contributor</a> to the Volokh Conspiracy.</em></p>
<p><em>Photograph by Mohammad Moniruzzaman/Corbis</em></p>
<p><em>Correction: The description of United States v. Jones was updated to correct an editing error.</em></p></div>
</div><br></div></div></div></div></div></div></div><br></div><br>-- <br>Art Deco (Wayne A. Fox)<br><a href="mailto:art.deco.studios@gmail.com" target="_blank">art.deco.studios@gmail.com</a><br><br><img src="http://users.moscow.com/waf/WP%20Fox%2001.jpg"><br>
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