Location Privacy. Does Your State Allow Warrantless Searches Of Cellphones?

Does your state's laws allow law enforcement to perform warrantless searches for cellphone location data? The American Civil Liberties Union (ACLU) released a report where it researched each state's current laws to determine whether residents' location privacy is protected or not:

"... 18 states now require law enforcement to get a probable cause warrant before obtaining people’s cell phone location information. Six of those states protect both historical and real-time location information from warrantless search... This year alone, legislation was introduced in 17 states. Instead of waiting for Congress or the courts to act, state legislatures are leading the way..."

Metadata about your phone calls reveals who you called, who called you, when the call happened, and how long you talked. Geo-location data reveals your travel patterns: where you went, when you left, when you returned, how long you stayed, places you passed by and didn't enter, and travel patterns (e.g., places you visit frequently and/or at certain times or on certain days).

The report included what's known (so far) about stingrays, the technology using fake cellular phone towers to spy and collect your phone usage and geo-location data:

"... New Hampshire has joined the ranks of states offering full probable-cause warrant protection to both historical and real-time cell phone location information. The Washington legislature unanimously passed a law requiring a warrant for use of “StingRay” cell phone tracking equipment, and Virginia enacted a similar law."

You can browse the report to read detail about the laws (or lack thereof) in the state where you live. For example, the state where I live:

Besides stingrays, the use of other technologies threaten consumers' location privacy. The ACLU of Southern California and the Electronic Frontier Foundation (EFF) asked the California Supreme Court to review their lawsuit seeking access to automated license plate-reader (ALPR) data collected by the Los Angeles Police and Sheriff’s Departments. The EFF said in July:

"This case has significant precedential impact, setting a troubling standard allowing police to keep these records and details of its surveillance of ordinary, law-abiding citizens from ever being scrutinized. The appeals court ruling may apply not only to records collected with license plate cameras, but to data collected using other forms of automatic and indiscriminate surveillance systems, from body cameras and dash cameras to public surveillance cameras and drones. Without access to these records, we can’t ensure police accountability."

The case started in 2012 when local law enforcement refused to disclose ALPR data after the EFF filed a public records request:

"... cameras mounted on patrol cars and at fixed locations around the city and county of Los Angeles. ALPRs automatically take a picture of all license plates that come into view and record the time, date, and location where the vehicle was photographed. Because the agencies store the data for two to five years, they have been able to collect a massive amount of sensitive location-based information on mostly innocent Los Angeles residents..."

Reportedly, the reasons given by local law enforcement agencies:

"The agencies refused to turn over the records, claiming they could withhold the millions of license plate data points as “records of law enforcement investigations,” which are exempt from public review under the California Public Records Act. Incredibly, they argued that all drivers in Los Angeles are under criminal investigation at all times—whether or not the police suspect them of being involved in any criminal activity. The ACLU has estimated that as many as 99.8% of the vehicles photographed by ALPR cameras are never linked to any ongoing criminal investigation..."

Sadly, both the trial and appeal courts sided with the law enforcement agencies. So, the threat to consumers is two-fold: a) collection of law-abiding citizens without notice nor consent, and b) lack of accountability of government surveillance programs that could extend into more technologies such as body cameras.

Last, all of this does not minimize nor condone surveillance by corporations, which is arguably more extensive than government surveillance. Terms such as behavioral advertising, geo-fencing, and targeted advertising are often used to describe private-sector surveillance, with vague promises of relevant advertising benefits. At the end of the day, surveillance is surveillance; tracking is tracking. Many law enforcement and spy executives have probably looked at the extensive private-sector surveillance with weak consumer protections and concluded, "if they can do it, so should we."

View the ACLU report and status of warrantless search laws in your state.

Comments

[Chanson de Roland]

A couple of points. First a warrant is authorization, an order, issued according to law by a judge or magistrate of a court of competent jurisdiction that permits the someone, usually the state through its agents, to do a thing. That thing can be to make an arrest or conduct a search. However, there are different types of warrants, and a probable-cause warrant is a very special type of warrant. Probable-cause is a reasonable and articulable basis in fact for believing that a person has committed, is committing, or will commit a crime. The 4th Amendment of the U.S. Const. mandates probable-cause for both state and federal investigators to be able to conduct searches, seizures, surveillance, and monitoring of a person or his premises or property. However, there are certain important exceptions to that constitutional mandate, which the courts have, I think unfortunately, been expanding, thus shrinking probable-cause protections. Before a probable-cause warrant may issue, with certain important exceptions, the investigating authority must appear in court before a judge or magistrate and articulate the facts that are the basis of his probable-cause and swear and affirm that, based on his investigation or on information and belief (i.e., statements from an informant), those facts are true. If the facts later prove false, the warrant may be quashed and the evidence gathered from it, with certain important exceptions, may be excluded as evidence from any and all at least criminal legal proceedings.

As for the state restrictions reported on, supra, they do not in anyway restrain the federal government, which is restrained only by the 4th Amendment, the ambit of its constitutional jurisdiction, and federal law.

[George]

Chanson:

Thanks for the clarifying points. I agree. Probable-cause warrants are okay. I object to the warrantless kind.

George
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