PublishedSeptember 8, 2011

Court Rulings Impact Cell Users' Privacy

The past week has seen two different federal court decisions that have a bearing on the privacy of your location, particularly information that can be gleaned from the use of an average cell phone.
This information, usually called “cell-site location” data, is gathered and stored by cell phone service providers in the course of their business, and it reflects which cell towers your phone uses to send and receive phone calls. Depending on the density of cell towers in a location, the accuracy of this information can range from within miles down to a city block or smaller.
In the current Electronic Communciations Privacy Act, the standards for when the government may demand this information from the phone companies is not at all clear, and a mishmash of standards has arisen, mostly driven by the Department of Justice’s own interpretation of the law, which requires a minimum of judicial oversight.
This low standard has caught the attention of both Congress and the courts already. Senator Leahy’s proposal  to reform ECPA includes language that would require a warrant standard before all prospective accesses, although not for restrospective demands.
Senator Wyden and Congressman Chafetz have also introduced a law that would institute a warrant standard before accessing any location information. Various courts have gotten involved as well, including the DC Circuit Court of Appeals, which decided recently ruled that surveillance by GPS device over a month-long period required a warrant. The Supreme Court has decided to hear that case, as well. The Third Circuit decided last year that a warrant was not required for historical cell-site data, but ruled at the same time that a judge could require one at his or her discretion.
Two courts have taken up the question in the past week, and the results give even more hope that the courts in general may be getting this important question right.
First, a trial level court in the Eastern District of New York has rejected the government’s request for a court order ordering the release of retrospective cell-site data on a suspect. The court ruled that notwithstanding any interpretation of ECPA, people have an expectation of privacy in the totality of their location over the course of a period of time, and that therefore the Fourth Amendment required a warrant before law enforcement could demand that information. This decision is clearly written and carefully articulates what many have already come to believe is true: just because a person is on the public streets does not mean that all their comings and goings cannot be considered private. Technology has made the mass surveillance of people cheap and effective and our concept of what is private must change in the face of changing technology, as it has done many times before.
 
Secondly, the DC Circuit Court of Appeals earlier this week handed down aruling in a Freedom of Information Act case between the ACLU and the Department of Justice. The ACLU was requesting access to statistics about the demands for cell-site location data, but the DoJ was refusing to share it. The court decided on the side of the ACLU, ruling that DOJ did have to turn over the information under FOIA. While not a decision on the merits of government access to location data, the information that the DOJ will turn over will be valuable in finding out how pervasive the collection and use of this information is, and how much government access affects ordinary citizens. We look forward to hearing what the statistics show.
 
Both of these decisions, as well as the activity in Congress, show that location privacy is on the front of many minds. We will continue to push this conversation forward, until privacy protections for location information actually meet up with people’s expectations.

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