The Continuing Saga of Cell Phone Tracking

cell phone, blog post

By Kelsey O’Neal

We count on our cell phones to be fast. We hate waiting for a call or a text. Our cell phones constantly emit signals to the closest cell tower. These fast signals instantly gratify us. But as you carry your phone, it creates a mass of data called cell site location information (CSLI). You don’t even have to use your phone; just having it on creates the cell site location information. U.S. federal law is divided on whether the government needs a warrant to get this information. On July 29th, 2015, U.S. District Court Judge Lucy Koh issued an opinion which requires that a government agency get a warrant before it requests 60 days of cell site location information.

Judge Koh wrote that tracking cell phones with historical cell site location information is particularly dangerous because law enforcement can use the cell site information to look into people’s homes and learn detailed information about an individual’s personal life. Judge Koh ruled that the government must obtain a search warrant to access these personal details because: (1) people expect privacy from government intervention when they are at home; (2) people have a higher expectation of privacy when it comes to long-term surveillance, and (3) cell phone location data can reveal a great deal about an individual because everyone turns on their cell phone and carries it with them. Twelve states agree with Judge Koh; six states already have a law that requires the police to get a warrant, and six are trying to get one.

However, not all states or courts agree with Judge Koh. Early this year, an 11th Circuit panel held that the police do NOT have to get a warrant to look at CSLI. Additionally, a 6th Circuit panel in Cincinnati held that you do not have a reasonable expectation of privacy if you accidentally butt-dial, ahem, pocket-dial, somebody. Why? The court compared it to leaving your curtains open; while there is still a privacy interest, it’s not nearly as strong because you are letting people look in your home. It would be simple to protect your privacy by shutting your curtains, or, by password protecting your phone.

It looks like this particular fight could head toward the Supreme Court, and the result could impact all cell phone users. Until that time, you should probably put your phone in airplane mode the next time you rob a bank.

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