To anyone who’s a fan of the TV show The Wire (and if you haven’t seen, it you should, even if just to get your friends to stop bugging you about it) the idea of throwaway phones or “burners” is a familiar one. If you’re up to no good, a phone you can toss is an attractive tool — but perhaps not anymore. A federal appeals court says police can track the GPS signals of phones without a warrant.
According to the Wall Street Journal, the U.S. Court of Appeals for the Sixth Circuit ruled that the Drug Enforcement Administration didn’t violate the Fourth Amendment when it tracked a drug runner through his throw-away phone and subsequently arrested him 2006. He was convicted of drug trafficking and conspiracy to commit money laundering, but appealed that ruling saying his cell phone data shouldn’t have been used by the DEA without a warrant.
So should we have the expectation of privacy if we’re on a phone right out in public for anyone to see? The Justice Department argued that no, a suspect in that situation wouldn’t be protected by the Fourth Amendment.
The judge who wrote for the majority said the defendant didn’t have a reasonable expectation of privacy because he had bought the pay-as-you go phone of his own free will, and if it’s being used to help traffic drugs while it’s giving off a signal, well, it can be tracked. Basically, criminals and their tools shouldn’t be un-trackable and police are just fighting technological fire with more technological fire.
“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.”
Another judge agreed with the ruling but not the reasoning, as she said the DEA never would have figured out who the drug runner was or whether he should be watched and tracked without first knowing his phone number and tracking him through the GPS data. In theory, he could’ve just been another person who didn’t want the hassle of signing a two-year contract with a wireless carrier.
By the way, in case your friends haven’t bugged you into watching it yet, The Wire is definitely worth your while.
Sixth Circuit: No Expectation of Privacy in Cell Phone GPS Data [Wall Street Journal]