Is Fourth Amendment jurisprudence out of date?

August 20, 2012

police cell trackingConsider this scenario:

Law enforcement obtain an order authorizing the phone company to release subscriber information, cell site information, GPS real-time location, and “ping” data on one of its subscribers’ cellular phones.

Using this information, law enforcement electronically trailed a suspected drug dealer by “pinging” the suspect’s cellular phone repeatedly over a three-day period.

Law enforcement caught up with him at a truck stop (using information to identify his vehicle from intercepted phone calls collected from another phone authorized by a separate court order).

After conducting a canine drug sniff around the exterior of the vehicle (an RV), the officers searched the interior, and found “over 1,100 pounds of marijuana.”

Does law enforcement’s warrantless tracking of an individual’s real-time location through his or her cell phone constitute a Fourth Amendment violation?

According to U.S. v. Skinner, a recent Sixth Circuit Court of Appeals decision, it does not.

Reading this opinion took longer than normal because I had to take numerous breaks to bang my head against the wall out of frustration.

The way that the opinion was written made it pretty clear that the author could barely contain his glee that law enforcement was able to track “criminals” like the defendant without their knowledge.

That may be why the appellate opinion was so scant on the technological details:

Why bother researching when you already know how you’re going to rule on a case?

Now, about these “pings” cited in the opinion: “pinging” is a process by which the cell phone’s carrier sends a signal to a phone, and the phone generates an automated reply with a set of location information.

A phone, in the ordinary course of business, only transmits cell-site location information that tells the provider which cell phone towers the pinged phone is near.

Although the appellate opinion made it clear that law enforcement was able to locate Skinner through “pings,” the opinion also repeatedly referenced that officers used “GPS location information emitted” from Skinner’s phone to locate him.

Luckily, the district court opinion cleared things up.

The phone’s GPS information was, in fact, obtained through the pings.

As mentioned above, this information isn’t normally collected by cell phone companies.

Instead, as occurred here, law enforcement specifically requested that Skinner’s mobile carrier obtain this information.

Orin Kerr at The Volokh Conspiracy writes that such tracking is constitutional, “so long as the monitoring only revealed the location of the phone on public streets.”

I would respectfully disagree with Mr. Kerr’s assertion, however.

This “public streets” distinction is important because of two Supreme Court cases – 1983’s U.S. v. Knotts and 1984’s U.S. v. Karo – which held as constitutional the placement of a tracking beeper inside of a container given to defendants by police informants.

In both rulings, the defendants were found to have “no reasonable expectation of privacy” since they were traveling on public roads while being electronically tracked.

Given this legal backdrop, it may seem clear that a simple application of Knotts and Karo legitimizes the Skinner ruling.

But there are several key points distinguishing Skinner.

First, the purpose of the beepers was to track the substance, not the individual.

In Skinner, police only cared about tracking the cell phone because they assumed – correctly – that Skinner would keep the cell phone on his person, and that he would keep the marijuana similarly close.

Next, the nature of the beepers in Knotts and Karo as tracking devices is quite distinguishable from Skinner’s cell phone.

The containers with the beepers were given to the defendants with the sole purpose of tracking the whereabouts of the containers; the defendants voluntarily accepted the containers, and could have easily inspected and discovered the devices.

The cell phone was owned by Skinner before the police started tracking him; the police simply co-opted preexisting technology in the phone to track him.

This last one may not seem like much of a distinction, but it very much is.

The amount of personal information discoverable through use of the preexisting technology in our mobile devices is staggering.

Even if law enforcement were only allowed to conduct surveillance on people on “public streets,” it’d still feel like a police state.

The most unelaborated application of this doctrine could be used to determine which individuals on “public streets” were speeding.

Fully developed, police could justify snooping on someone’s web browsing or email because they could simply argue that, since they were out in public, his or her mobile device screen was in open view to someone who happened to glance at it while walking by.

Does this sound like a scenario condoned by the Fourth Amendment?

To anyone familiar with the Amendment’s purpose, the answer should be obvious.

Admittedly, Skinner isn’t truly out of line with existing Fourth Amendment precedent.

However, the fact that the ruling is an unambivalent step in the above-described Orwellian direction should be indication enough that existing precedent is outmoded.