Court Says Cops Can Track GPS Signal Data On Pay-As-You-Go Phones Without A Warrant

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.

He explained:

“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]


Edit Your Comment

  1. bnceo says:

    I can see how a burner phone thrown away is now considered trash and can be scooped by and used. But not having to get a warrant to get info of a phone in one’s possession is pretty far out there. It’s not too hard to get a warrant. Law enforcement just prove to be lazy and don’t want any papertrail for accountability.

    • CaptainBill22 says:

      It’s not about the difficulty of getting a warrant, it’s the timing. Keep in mind if the investigators need a warrant and it’s 2 AM they need to get a Judge to approve a warrant. Besides the less paperwork the better. You don’t know if the person you’re looking for has someone inside your organization who can tip them off. Remember, the FBI isn’t going after the phones of everyone and their brother. Just those of known criminals.

      • RvLeshrac says:

        Totally. You can trust them, right? It isn’t like the FBI has ever been caught keeping secret files on law-abiding citizens or anything, right?

        And surely the FBI has never been caught abusing their authority or violating the law.

      • JJFIII says:

        ” the FBI isn’t going after the phones of everyone and their brother. Just those of known criminals”

        If you believe that, I have some land in southern Florida for you and also a bridge in Brooklyn to sell you

  2. HogwartsProfessor says:

    I’m confused; how the hell did they know it was his phone, unless they already were watching him or had the number? Can you “sniff” the phone? I didn’t think that was possible.

    • Bob A Dobalina says:

      or he bought it with a credit card

      cash only, people!

      • HogwartsProfessor says:

        That was what I was thinking. I didn’t know if they could find out anything from the phone if you bought it with cash, and you can still go get the minute cards with cash. Untraceable, and who is going to remember someone buying a prepaid phone when they probably wait on a hundred people a day? Send a straw man to do all your bidness.

    • mianne prays her parents outlive the TSA says:

      I’d like to think that if law enforcement is staking out a drug dealing hotspot, they can monitor the cell and GPS signals in the area and track dealers back to their homes or warehouses. Then they could track phones moving from suspected distribution warehouses to the grow labs, ports, or borders where the drugs originate. Since the phones are emitting signals into the open, I don’t see a big issue as far as warrantless surveillance, so long as they obtained a warrant before searching the premises, and hopefully that they’d work their way “up the food chain” to the kingpins as opposed to down to individual users.

      Actually I’d rather that drugs were legalized and taxed to eliminate drug cartels and gangs, as well as dangerous synthetic “bath salts”. But as long as it’s politically infeasable to end the “war on drugs”, may as well use technology to wipe out the kingpins while leaving minimal collateral damage in the form of non-violent users rotting in prison.

  3. quail20 says:

    Hmm. Wasn’t that the idea with throw away phones? You didn’t keep them long and only those who needed to know got the new phone number?

    I’ll bet the guy kept his full contact list on the phone too.

  4. mokie says:

    What makes this argument specific to pay-as-you-go phones?

    Using the judge’s argument, nobody has any expectation of privacy while using a cellphone, because we know they send out signals that can be picked up.

    So just because cops CAN pick up the signal with technology, nobody should expect to have a private conversation anymore?

    • baltimoron says:

      Pretty much. This isn’t going to be the last ruling on this issue though.

    • mianne prays her parents outlive the TSA says:

      Monitoring the conversation is a whole ‘nother can of worms versus tracking its physical location. If you really don’t want law enforcement or others to know where you are or where you’re traveling to; turn your phone off, and take out the battery if you’re really paranoid. If you’ve got an IPhone without a removable battery then put it in a couple of the electrostatic shielding bags that computer components come in. Ok, so you won’t be able to use the phone at the time, oh well, you’ll be pretty much the way we all lived up ’til the turn of the century. And if a few extra paranoid folks are discouraged from talking/texting while driving, so much the better!

    • KyBash says:

      If the phone is under contract, then the police would be tracking a specific person (i.e. they could easily obtain the name and address of the phone’s owner).

      If it’s a pay-as-you-go, then they’re tracking its usage in criminal activities without reference to any one person.

      As such, the police interest is completely neutral — they’re not targeting the phones of people of a certain race, religion, nationality, or political affiliation. They’re only targeting criminal activity, no matter who is doing it.

      I think that’s about as fair as you can get.

      If police had to obtain a warrant to track the phone, it’d have to be a John Doe warrant, which is as open-ended as having no warrant at all (a search warrant provides a certain level of protection to the person named in it; no name = no protection).

      • shovelDriver says:

        “only targeting criminal activity”? Okay.

        I’m not necessarily on the side of the “criminal;”, but absent public release of warrants and evidence, how do we know, in this day and age, that the accused is actually a criminal? It’s not as if there aren’t daily reports of cops, district attorneys, judges, and lawmakers lying, even under oath.

        Questions . . . (1) How did they discover the criminal activity? (2) How did they tie that criminal activity to that specific person? (3) How did they tie that phone to that activity? (4) How did they tie that phone to that specific person?

        I submit that, as is usual, they first tracked and monitored the phone, then and only then gathered sufficient evidence to tie them all together.

        The issue here is if police are allowed to make claims without having to prove their statements, then where do they stop? How do we know they are not overstepping their boundaries? Oh, that’s right; today’s law enforcement believes they set their own boundaries. Or so it seems. See the National Police Misconduct Reporting Project at www-dot-policemisconduct-dot-net.

        The 4th Amendment, no matter what we are told, requires “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

        Note “supported by oath or affirmation” and “particularly describing”. Note the words “shall not”.

        Any judge, district attorney, or cop who cannot comprehend the plain language of the 4th Amendment is – QED – unqualified for the job. Probable cause must be articulable, before the fact, and specific.

  5. samonela says:

    Well, all the pieces matter…

  6. Abradax says:

    How does police needing the ability to fight technology with technology mean they shouldn’t have to obtain a warrant? This is a VERY dangerous ruling.

    And the reasoning behind it is the most ridiculous piece of writing I have ever read. There is a difference between a police dog following a scent, or chasing someone based on a license plate number and police requesting and obtaining GPS tracking information from your phone/phone company without a warrant.

    • KyBash says:

      If it’s a phone under contract, assigned to one specific person, then a warrant is necessary (imo).

      If it’s a pay-as-you-go, then tracking it is the same as using hounds to follow a scent. The only difference is that it’s an electronic trail instead of a chemical one.

      • Abradax says:

        So in order to keep your information private from the police, you should be forced to enter a contract with a telecom? Verizon and AT&T must love that.

        • KyBash says:

          To keep your information private, just don’t use it for drug deals!

          If he’d had a contracted phone, the police could have obtained a warrant for his name and address from his carrier.

          Since he had a throwaway, their only way to identify him was by tracking the phone. It’s exactly the same as a hound following a scent to find who is at the end of it.

          • jessjj347 says:

            I disagree. Think about it – if someone is using a cellphone, wouldn’t the person be in private locations at various points? A person moves from public to private locations at will – so essentially the police are tracking him in situations that have the expectation of privacy. For example, let’s say the person is in an apartment building (or other applicable home residence). The police would still be tracking his “digital scent” via GPS, whereas a police dog would not be able to enter the apartment without a warrant.

  7. Jawaka says:

    I have no problem with this. The police would still need evidence of a crime in order to arrest and prosecute a person. Besides, if you’re really that paranoid can’t you just turn the GPS tracking off on most phones?

    • Cerne says:

      One of the nice things about living in a free and democratic society is we control the way police gather evidence. Or you know we used too.

      • Jawaka says:

        Things change. Technology advances. Evolve or get left behind.

      • bobosims says:

        No, you can’t. You can turn it off for everything but “E911” purposes. Law enforcement will, of course, track you by that beacon, not the one you can control. Heck, many modern phones don’t even give you the partial control option any more. The easiest way to take back control of your phone would be to open the case, find the GPS logic chip and cut a few of the chip traces with an x-acto blade. You can also cut the antenna traces, but make sure you get the GPS traces and not the ones for the voice/data transmitters… this is not as good, as some antennas are shared, some gps chips might have the antenna embedded within the chip, and some GPS chips might still be able to receive thanks to adjacent traces on the circuit board. Best/most reliable way is to physically sever connections to the chip itself. You’ll need some basic electronics know-how and you’ll need the data sheet for your particular phone’s GPS receiver (and probably a magnifying lense), so that you can be sure to cut traces that will affect it’s ability to receive but so that it still appears to the phone’s cpu to be present. And, of course, by opening the case you’ll be voiding your warranty… so don’t do anything you’ll regret.

    • shovelDriver says:

      Last year, I beleive, the NSA admitted in a court filing (google it) that they place an invisible software package on your phone which allows them to covertly activate your phone, listen to you via the mike even when you have it turned off, record your conversations, and oh by the way, track you even when you have the GPS function disabled. They can cause the phone to record and store conversations, as well as phone calls and digital data events, for later burst transmission to outside receivers. They also admitted that they have made this app available to your civilian police agencies and that it is being used without court orders under the guise of “national security”. So get your aluminum caps on, place your phones in RF-shielded and vision/soundproof containers. Or take the batteries out as most upper-level CEO’s now do routinely when discussing corporate business.

    • kc2idf says:

      Irrelevant. The difference between GPS data from your phone and triangulation data from the towers is not so much that they can’t place you on a particular block, and still figure out if you’re moving, roughly how fast, and in which direction.

      There is no way to take directional data (which makes triangulation possible) out of the picture, either, because the towers use the data so generated to bring the signal to you. Without this, your phone can’t work because the network doesn’t know where to send your streams.

  8. Extended-Warranty says:

    Oh please…

    This is only saying they can track GPS data. Anything else is business as normal. Pay-as-you-go phones for nefarious reasons aren’t just in The Wire. It’s tough to track, and criminals know it.

    • dangermike says:

      I’ll give you the fact that pre-paid/pay-as-you-go/burn-phones are commonly used tools of criminals. But that certainly does not imply that their common use is for criminal behavior. In fact, I’m fairly sure the vast majority are used by people who cannot afford a “traditional” cell plan or save a lot of money vis a vis monthly plans due to low usage. To analogize: Because plastic sandwich baggies are useful for portioning out and selling drugs, should it be justifiable to track anyone buying plastic sandwich baggies?

    • jessjj347 says:

      This is one of the premises about the ruling that bother me – that pay-as-you-go phones are primarily used for criminal behavior.

  9. oldwiz65 says:

    Himmler and Beria would be proud of the judges in the U.S. today. Of course neither Himmler nor Beria paid much attention to laws anyway.

    How soon before we all have to wear a tracking chip?

  10. partofme says:

    Warning: Terribly off-topic post simply making light of grammatical hilarities. Don’t read if you hate fun.

    and if you haven’t seen, it you should

    Thank you, Korean Yoda.

  11. T. Bone says:

    The courts are corrupt in the USA. In 10 years the USA will be the former USA after the dollar collapse. The USA may need a civil war to end the corruption.

  12. mulch says:

    If we could evolve past prohibition and develop a rational response to substance abuse, chasing “drug dealers” would be as outdated as consulting a phrenologist.

  13. Paul in SF says:

    For those who were wondering how the police knew that the subject possessed and was using the particular phone in question, other news sources reported that the police got the number of the phone from an informer, a co-conspirator whose duties inside the criminal enterprise gave him access to the number.

  14. PurplePenquin says:

    If it really is considered public info (and thus no warrant is needed), then are any of us allowed to track the police via their cell-phones? Might make it really handy to avoid speedtraps and whatnot…

  15. ScandalMgr says:

    Clearly the judge has not thought this out, because the workaround for a smart criminal is to now carry several phones, ditching the one s/he was just using in a decoy (or innocents) car for police to waste their time tracking.

    • ScandalMgr says:

      D’oh, didn’t state the obvious: carrying several SIM cards for the same phone wouldn’t work because the IMEI number being transmitted would be the same, trackable number.