protecting-your-privacy

Debate Over Location Privacy Heats Up With New Court Ruling

June 12, 2014 - Written By Ray Greer

Our smartphones are capable of many different things, one of which is determine our location. This usually happens every time we make a call or in a few other situations. That location information can be stored somewhere with our carriers. That means if you’re committing a crime, it’s possible for police to obtain that location information to use against you in any court hearings that may occur. The debate on this situation is a heating up as a Federal Judge in Miami Florida has ruled that it is in direct violation of the peoples Fourth Amendment rights.

Last year the Fifth Circuit had a similar case where the police used information stored at a cell tower site against the defendant. When found guilty, the defendant attempted an appeal, stating that the police violated his Fourth Amendment rights. Unfortunately, the court found that this was not a violation of any Amendment. Instead, they found that the information was merely the property of the carrier, therefore not protected by the Fourth Amendment. However, a different court in the 11th circuit (Florida, Georgia and Alabama) has come to a very different conclusion.

In a case that involved a robbery, the government obtained location records of the defendant over a 67 day period. Instead of getting a warrant for those location records, the U.S. Attorney’s office got what is known as a “D-order”. Unlike a warrant, a “D-order” is essentially a warrant for records that involve someones electronic records. Another major difference between a “D-order” and a warrant, is that a “D-order” asks that the information obtained be “relevant and material” to the investigation. That makes the “D-order” easier to obtain with fewer guidelines than what is required by the Fourth Amendment. Still, the U.S. Attorney’s Office obtained 11,606 different location records that pertained to their suspect-Quartavious Davis. Using that information, Davis was convicted of the crime he was alleged to have committed. Just like we saw last year, Davis also appealed the decision stating that since the case was largely based on the obtained location information, the outcome should have been different as it violated his Fourth Amendment rights. Interestingly enough, this has sparked the conversation yet again.

Davis was still found to be guilty of his crime, and the ruling will stand. The reason the ruling will stand is because the U.S. Attorney’s office obtained a “D-order” for the location information, however this will no longer be allowed to happen. The court said, “In the 20th century, a second view gradually developed,” continuing to say, “that is, that the Fourth Amendment guarantee protects the privacy rights of the people without respect to whether the alleged ‘search’ constituted a trespass against property rights.” Essentially this ruling states that our location data should be considered our private property, therefore should require a warrant to obtain. There is a more detailed view on this provided by the same court. “While committing a crime is certainly not within a legitimate expectation of privacy, if the cell site location data could place him near any other scene,” Continuing with, “There is a reasonable privacy interest in being near the home of a lover, or a dispensary of medication, or a place of worship, or a house of ill repute.” Essentially it would seem the court is saying any location data gathered by police or the Government could obtain things that are to be considered private. Thus, too risky to do as it may violate the Fourth Amendment rights of any one person. The court in the 11th Circuit had plenty more to say though, making sure they drove their decision home.

The court found that when any one person makes a phone call, they are not agreeing to any terms that state location data as open and public records. No one is giving away location data simply by making a call, and that makes their location their private property. These findings will affect any court in the 11th Circuit, however it is likely that it will have some influence elsewhere. Which makes the American Civil Liberties Union (ACLU) very happy as they are advocates for the cause. In response to the courts decision an Attorney from the ACLU, Nathan Freed Wessler said, “The court’s opinion is a resounding defense of the Fourth Amendment’s continuing vitality in the digital age.”

Unfortunately, the debate on this topic is far from over. Last year, the court in the Fifth Circuit that found that collecting data wasn’t in conflict with Fourth Amendment rights said it best. The court in the Fifth Circuit said that if the people want to see this information protected by the Fourth Amendment, they need to lobby Congress.

Is this something that concerns you, do you feel that the U.S. Government collecting our location data from carriers is a violation of our Fourth Amendment? Or should the people be aware that when making a call their location data is collected and forfeit that information to the carrier as their property?