Does Your Right to Privacy Extend to Your Cell Phone?

By Robyn Hagan Cain on October 04, 2012 | Last updated on March 21, 2019

Maybe Scarlett Johansson has the right idea.

In August, the New York Post reported that ScarJo had "ditched virtually all technology" after a hacker stole nude photos of the actress off of her phone last year. According to the Post, Johansson is paranoid that people are constantly spying on her.

Getting rid of gadgets seems like an extreme step for those of us who aren't worried about naked picture leaks, but Johansson's technophobia could also save her from warrantless cellphone tracking.

If you think that the government doesn't try to track people through cell phones, it's time for a healthy dose of paranoia.

This week, the Fifth Circuit Court of Appeals heard oral arguments in In re US Application for Historic Cell-Site Location Information, addressing whether the Fourth Amendment allows the government to force disclosure of historical cell phone location records without a warrant.

In the case, the government asked a magistrate judge to approve a request to two cell phone companies for 60 days of cell phone location records as part of a routine law enforcement investigation. The judge denied the request, saying it was necessary for the government to get a warrant based on probable cause before it could obtain the records, the Electronic Frontier Foundation (EFF) explains.

The Justice Department challenged the judge's ruling, arguing that warrantless tracking through mobile devices is perfectly legal, CNET reports. It claims that its position "is consistent with the Fourth Amendment because a customer has no privacy interest in cell-site records, which are business records created and stored by a cell phone provider in its ordinary course of business." The feds also argued that the Stored Communications Act allows them to force a cellphone company to turn over historical cell-site location information on subscribers.

The courts have mixed opinions regarding whether or not an individual's right to privacy covers his cell phone data. In January, the Supreme Court ruled in U.S. v. Jones that the government needs a warrant to physically place a GPS tracker on a person's car, but the majority opinion was silent as to whether warrantless tracking through electronic devices would be permissible. In August, the Sixth Circuit Court of Appeals concluded that cops don't need a warrant to track a cell phone GPS signal.

Internet voyeurs aren't the only threat associated with omnipresent cellphones. The Man wants to track suspects through their phones; now it's up to the Fifth Circuit to decide whether the government can do so without a warrant. If the New Orleans-based court finds that cell phone tracking requires a warrant, the circuit split could prompt a speedy Supreme Court review.

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