September 19, 2011
Click here for the post on the court ruling requiring a warrant for cell-phone location data.
Click here for the post on the SCA’s protections against civil discovery orders.
Click here for the post on the SCA and the Fourth Amendment.
Last week’s post discussed the protections the Stored Communications Act (SCA) provides against the government obtaining personal information stored electronically.
Actually, the post concluded that because of how much information people provide on their Facebook pages, law enforcement has very little trouble showing probable cause and obtaining a warrant to get anything and everything about an individual from Facebook.
Does the government always have such an easy time getting electronic data about an individual?
Last month for example, a federal judge in Maryland denied the government’s application to obtain real-time location data from an individual’s cell phone.
Although the SCA allows the government relatively easy access to “subscriber records,” and many judges have allowed the government access to historical cell-location data (though that trend seems to be reversing), this situation was different for several reasons.
First, the sought data aren’t considered “records” under the SCA.
Why? Because the government wanted the court to order Sprint, the wireless provider, to “ping” (send a signal to) the individual’s cell phone that would have the phone to compute its current GPS (global positioning satellite) coordinates.
After Sprint received that data, it would forward it immediately to government agents.
This would have been data specially requested, not something that Sprint regularly recorded in the course of its business, and therefore not “records.”
Second, granting the government’s request would turn the individual’s cell phone into a tracking device, which requires a separate court order before installing.
How? The government wanted real-time access to the individual’s location upon request for up to 30 days, and if that isn’t tracking device functionality, I don’t know what is.
According to the court, the government needed probable cause to believe that the data it wanted constituted evidence of a crime.
Meaning, despite the fact that there was an arrest warrant on the individual the government wanted tracked, without evidence that he knew of the warrant and was fleeing from authorities, the government couldn’t track the individual.
The court added that with the increasing accuracy of locating individuals by means other than GPS, other methods of real-time tracking (such as using cellular towers) also require the same showing of probable cause.
This last point raises an interesting question, though.
Where is the line drawn?
Could the government obtain real-time access to your Facebook page, based on the probable cause belief that a forthcoming status update would be evidence of a crime?
Probably. And while such access would be more cumbersome and more difficult to obtain than the pre-packaged historical information provided by Facebook, it would be easier to obtain than real-time cellular location data.
As technology advances even more, and law enforcement increasingly looks to it for evidentiary and monitoring purposes, these types of cases will become more and more common.
This is certainly much to the chagrin of many judges, since it requires them to look at novel legal questions (meaning, they have to author very long opinions with sparse legal precedent as guidance).
Action by Congress giving clear guidance on privacy protections with today’s technology, and hopefully including a broad expansion of individual privacy rights.
Unfortunately, since this would technically qualify as accomplishing something worthwhile, it’s unlikely to happen anytime soon.