A National Consensus: Cell-Phone Location Records are Private

That’s according to this summary of the emerging law in states and federal courts across the country regarding your phone’s cell-site location data. Those are the logs and records of the cell towers that your phone is constantly connecting or attempting to connect to as you go about your business. Your phone has to do that in order to be able to make or receive calls because your phone is, essentially, a radio. It emits and absorbs radio waves to and from those cell towers, which are called cell sites, in order to carry the sound of your voice across hundreds or thousands of miles. By doing so, however, your phone creates a fairly precise record of everywhere you roam. It’s a tracking device.

Courtesy of the Electronic Frontier Foundation, this summary captures the trends and trajectories of countrywide answers to this question: Do Americans have an expectation of privacy in the location information generated by their cell phones (or other devices)?

To many, the answer is obvious. If someone followed you everywhere you went for long stretches of time, or perhaps any stretch of time, you’d probably call the cops (if they weren’t the ones doing it). Although we may choose at times to broadcast our location through social media or otherwise, cell-site information is different because it’s not really voluntary. In fact, it’s impossible to participate in contemporary society without carrying a cell phone and creating these records. For the vast majority of Americans, a cell phone is the only phone they have, and there is no other way to use the technology than by creating such records and entrusting them to a service provider.

So argues the EFF in a brief it filed two weeks ago in support of a warrant requirement for cell-site location data. The impetus for the brief came when a federal judge denied a government request for such data and asked the government to explain why it believed it did not need a warrant to get them. The court also asked the federal public defender’s office to file a brief on the issue, and the EFF, among others, filed amicus curiae briefs in support of their positions.

The tide may be turning in favor of protecting such data, as the EFF’s summary and brief explain. In 2012, five justices of the U.S. Supreme Court recognized that it was a “search” within the meaning of the Fourth Amendment to affix a tracking device to someone’s car for an extended period of time. See United States v. Jones, 132 S. Ct. 945 (2012). Since then, the legislatures of five states—Maine, Utah, Montana, Colorado, and Minnesota—have passed laws requiring search warrants to obtain cell-site or electronic location data, and the supreme courts of two other states—New Jersey and Massachusetts—enshrined a warrant requirement in their state constitutions. Three other states—Virginia, Wisconsin, and Indiana—have passed laws that require warrants to track a cell phone in real time, though perhaps not for historical data. And just this month, Missouri passed a constitutional amendment of all things to protect all electronic data and communications. These states join four others—New York, Hawaii, Oregon, and Washington—that already required a warrant to track people’s movements electronically.

To be sure, battlegrounds remain. In 2013, the federal court of appeals that covers Texas, Louisiana, and Mississippi went the other way, holding not just that it was okay for the government to track your historical cell-site whereabouts without a warrant but that it wasn’t even a search under the Fourth Amendment because you have no reasonable expectation of privacy in such data. The court based this conclusion in large part on the outmoded and oft-derided third-party-records doctrine.

But just a few weeks ago, another federal appellate court, which covers Georgia, Alabama, and Florida, reached the opposite conclusion, ruling sensibly that, yes, people do have a reasonable expectation of privacy in their location data.

And earlier this year, the U.S. Supreme Court decided unanimously that police need a warrant to search your cell phone upon arrest. The implications of that decision continue to reverberate nationwide.