Appeals court rules that cell phone tracking is legal, correct use of technology

By Graeme McMillan

Warrantless cell-phone tracking by the authorities is, apparently, entirely legal in parts of the U.S. thanks to a new ruling by a federal appeals court, which has ruled in favor of upholding the sentence of a drug-trafficker arrested after being located using their cell signal.

The dream of far too many Hollywood thrillers — not to mention TV police procedural shows – has come to pass, and with it, the nightmare of many civil liberties activists. Warrantless, real-time cell phone tracking is now entirely legal in parts of the United States, thanks to a ruling from a federal appeals court.

The ruling (pdf) was issued by the  6th U.S. Circuit Court of Appeals for the Eastern District of Tennessee, located in Knoxville, TN, and came in response to an appeal from a convicted marijuana smuggler facing a 20 year sentence after being tracked down by U.S. Drug Enforcement Agency officers who used data harvested from his pay-as-you-go cell phone to pinpoint his location. The 2:1 ruling in favor of upholding the sentence rejected arguments that pinging communication towers to track cell phone users was illegal.

The ruling only applies to laws in the Sixth Circuit, which encompasses Tennessee, Kentucky, Ohio, and Michigan.

Writing for the majority, Judge John M. Rogers explained that, “If a tool used to transport contraband gives off a signal that can be tracked for location, certainly the police can track the signal.” Rogers continued, “The law cannot be that a criminal is entitled to rely on the expected untrackability of his tools. Otherwise, dogs could not be used to track a fugitive if the fugitive did not know that the dog hounds had his scent. A getaway car could not be identified and followed based on the license plate number if the driver reasonably thought he had gotten away unseen. The recent nature of cell phone location technology does not change this. If it did, then technology would help criminals but not the police.”

Judge Bernice Donald, writing in the minority, turned out to be in favor of the conviction being upheld but in disagreement about the legality of cell phone tracking. “I would not characterize the question before us as whether society is prepared to recognize a legitimate expectation of privacy in the GPS data emitted from a cell phone used to effectuate drug trafficking,” she wrote. “Rather, in keeping with the principle that the law affords the same constitutional protections to criminals and law-abiding citizens alike, the question is simply whether society is prepared to recognize a legitimate expectation of privacy in the GPS data emitted from any cell phone. Because I would answer this question in the affirmative, I cannot join Part II.A of the majority opinion.”

As Wired points out, this case is merely one of many mulling the legality or lack thereof of authorities using mobile device data to keep tabs on the whereabouts of suspects. Tellingly — and somewhat worryingly — the Obama Administration believes that cell phone users have no legal expectation of privacy on such information, because it resides with a third party (the cell phone carriers). With this kind of thing the subject of intense debate on both sides, it can’t be too long before this subject reaches the Supreme Court for final ruling.