Is Your Private Cell Phone Private? Not So Much…

iphone with location services

The Fourth Amendment to the United States Constitution states: “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.”

Sounds like we should feel secure in using our private cell phones, doesn’t it?

If only it were that simple.

As a general principle, if a government agency wants access to our persons, houses, papers, or effects, they must ask a judge for a search warrant. In order to justify a search warrant, the government must prove to a judge that it has probable cause to believe that a crime has been committed.

Because our sophisticated cell phones send out signals allowing cell phone companies to know, roughly, our location, the question arises as to whether that location data is private or not.

What if the police want to obtain that location data? They don’t want to know your personal conversations or texts. They just want the cell phone company to reveal the locations tracked by your phone.

Courts around the country have been debating this issue. The most recent ruling came last week from the 5th US Circuit Court of Appeals, which held that cell phone companies can turn this location data over to the police without a warrant. They reasoned that cell phone users don’t have a “reasonable expectation of privacy” in their location data because it is data that is automatically collected by phone companies as a business record.

Do we have a remedy for this? The court suggested we can either:

  1. Contact our legislators to ask them to pass a law to prevent this information disclosure, or
  2. Quit using our cell phones, because it’s our use of the cell phone that generates this information

Admittedly, police are often able to use this location data to locate and apprehend criminals. But it is disturbing that yet another chink has been made in the wall of protection surrounding our persons, houses, papers, and effects.

The leap to even greater intrusion is not a large leap. We must diligently guard our wall of protection—our beloved US Constitution.