The ACLU recently released its report on police practices in tracking cell phones. The requests to law enforcement offices around the country were made in August, before the recent Supreme Court decision in U.S. v. Jones on the 4th Amendment implications of GPS tracking. Approximately 200 agencies responded to the ACLU. Only ten reported not using cell phones to track suspects. Among those that do, the legal standards for tracking vary widely. Some require a search warrant before tracking, some do not. The amount of information collected from this tracking also varies considerably. While the law enforcement agencies recognize that the law is unsettled on this issue, in the internal documents given to the New York Times, the agencies recognize that regardless of their legality, warrantless cell phone tracking is unlikely to be politically popular.
While the fallout of Jones remains to be seen, the ACLU’s proposal that law enforcement agencies acquire warrants before tracking cell phones seems quite reasonable, particularly since several agencies already do so and do not seem to have any particular problems with such a requirement.
In terms of thinking through how privacy, police practices, and information technology intersect, it would help to know what a cell phone is. These are no longer devices that are primarily intended to make and receive telephone calls. As smart phones become increasingly powerful, sophisticated, and ubiquitous, our expectations about our privacy, and about our relationships to our devices, must necessarily undergo a substantial change. But while the early transition of the telephone from a party line to personal line increased expectations of privacy and notions of ownership, the move to smart phones might be pushing the other way.
Consider the ways in which geolocation is used as a feature in phones. Whether GPS is involved, triangulation from cell towers, local wireless networks, or a combination, not only can smart phones determine a user’s location, but users value this feature as a way to get information geared towards that location or to socialize. At some point, it stops being an issue of tracking a user’s location and becomes one of the user broadcasting his or her location. We value these devices for their ability to communicate a large amount of information instantaneously. But, having commanded them to speak, we now find that we cannot stop their digital logorrhea.
There are clear differences between the GPS device of Jones and the cell phone tracking in the ACLU report: one involves physically attaching a device to property, the other involves making a call to the phone company; one involves triangulating from cell towers, the other involves triangulating from satellites; the list could go on. These seem to be beside the point, as noted in Alito’s concurrence in Jones, which leaned on Katz’s reasonable expectations of privacy. But the rapidly changing nature of cell phones is but one example of the problem we face in ascertaining what reasonable expectations of privacy we actually can or should have in a world of social media.
There is something different about privacy rights in a world where we are constantly leaking our own personal information and storing the information of others. While privacy rights are not coterminous with property rights, there remains an important connection between the two. The ACLU is right to insist that the tracking of cell phones be subject to the scrutiny of the courts and the basic requirement of search warrants and establishing probable cause. But we cannot stop there, because the technology will not stop there either. Our attempts to protect civil liberties amidst communications technologies will remain ad hoc and inconsistent unless and until we can clarify property rights over information.
Would you agree that cell phone tracking as discussed by the ACLU is not within the definition of search as described by Justice Scalia’s narrow entitlement-based majority opinion, but would be within the proposed definition in Alito’s concurrence? It seems to me that the Scalia opinion was at least partially purposefully directed towards disfavoring expansive readings of the decision. It would be really interesting to see whether the majority was willing to return to a Katz-like approach if presented with a cell phone case that doesn’t tie into the narrow property-based reading as well as a GPS device does.
I think that reading of the opinions is right, and it raises the question of why we treat these two scenarios differently. The reports by the ACLU and the New York Times suggest that law enforcement agencies are generally aware that this is not an issue with an obvious answer. It will be interesting to see how it plays out, particularly since the technology really does seem to create some new problems on the level of first principles regarding privacy, property, and the challenges of contemporary policing.