Cellular phones have become a ubiquitous part of everyday life. According to CTIA Wireless Association, 302.9 million people in the U.S.–over 96% of the population–carry a cell phone. However, the price of being permanently “connected” via your cell phone may just be your privacy.
Several times each minute, cell phones register with the network when getting a wireless signal. This function cannot be turned off, and creates a very accurate record of where an individual is virtually every minute of their lives. Police and other law enforcement increasingly use cell phone tracking in emergency and non-emergency situations alike.
The ACLU recently released a study that examined the use of cell phone tracking by a number of law enforcement departments. The findings contains findings from over 380 public records requests and 200 responses made to and from police departments from 31 states around the country.
To say the least, the results are alarming. According to the ACLU, police departments are repeatedly using cell phone tracking in situations where they have not obtained a warrant in violation of the 4th Amendment.
Under the 4th Amendment of the U.S. Constitution, an individual has the right to be free from unreasonable searches and seizures unless the search or seizure is supported by a warrant based on probable cause. Even though there is no law specifically concerning cell phone tracking, an analogy can be made with the recent case of US v. Jones where the Supreme Court ruled that government agents were required to obtain a warrant before placing a GPS tracking system in a suspected drug dealer‘s car. Attorneys argue that it should be no different when a person is tracked through the GPS in their cell phone. However, it seems that police departments around the country have routinely failed to obtain warrants for purposes of tracking individuals‘ cell phone activity.
Nearly all of the 200 responses received by the ACLU from state and local law enforcement departments stated that they employed cell phone location tracking in some way. Only 10 respondents stated that their department never tracked cell phones. The practice is so common that cell phone companies have manuals for communicating with police officers and some charge police departments “surveillance fees.” Some police departments have even acquired their own cell phone tracking equipment. A very small number of respondents reported regularly obtaining a warrant to access and individual‘s phone location information.
In New Mexico, the ACLU sent out requests to the Albuquerque, Las Cruces, and Roswell police departments. Only the Albuquerque PD (APD) responded to the request. The request and response can be found at: https://www.aclu.org/protecting-civil-liberties-digital-age/cell-phone-location-tracking-documents-new-mexico#Albequerque.
In its response, the APD stated that it obtains a warrant or subpoena based on probable cause except in cases of “exigency.” The response did not include an explanation of the standards used to determine exigency. The APD response also stated that any records obtained from a cell phone company were stored with each case file in the APD Records division, presumably indefinitely.
One of the biggest problems cited by the ACLU was the lack of a uniform laws concerning cell phone tracking policies. Federal and state laws regarding electronic surveillance are outdated, contradictory, and in some cases do not even exist.
To address these shortcomings, there is currently a bipartisan bill, the Geolocation Privacy and Surveillance (GPS) Act, before Congress aimed at protecting privacy rights from police use of GPS tracking via cell phone. This bill would require law enforcement to obtain a warrant based on probable cause before accessing cell phone location information. These privacy protections are needed equally by all citizens, law-abiding and otherwise.