A Justice Department attorney told a Philadelphia federal appeals court that he saw “no constitutional bar” to the acquisition of cellular service provider information which details the location of cell phone users.
Mark Eckenwiler, a senior attorney in the criminal division of the Justice Department said, “The government is not required to use a warrant when it uses a tracking device.” Clearly, Eckenwiler considers a cell phone to be such a tracking device and he sees no constitutional problem with obtaining data from cellular providers that can reveal the approximate locations of handheld and mobile devices, according to a CNET story.
The judge in the case, Dolores Sloviter, seemed to question the view held by Eckenweiler, noting that those records could reveal if cell phone users “have been at a protest, or at a meeting, or at a political meeting” and that rogue governments could misuse that information. Further, it is known that police are tapping into the locations of mobile phones thousands of times a year. The legal ground rules for such surveillance techniques remain unclear, and federal privacy laws written a generation ago are ambiguous in cases such as these.
Susan Freiwald, a law professor at the University of San Francisco, told the court, “When the government acquires historical cell location information, it effectively commandeers our cell phones and turns them into electronic trackers that report, without our knowledge or consent, where we have been and how long we have spent there. We should be able to use our cell phones without them creating a virtual map of our every movement and association.”
A court ruling favorable to the Justice department would almost certainly result in a further appeal by privacy advocates, possibly resulting in a Supreme Court judgement on this issue. It is also possible that the Justice Department would appeal the case if the Philadelphia appeals court rules against it. Such tracking information can be very detailed if done prospectively, a method which can reveal the minute-by-minute location of a handset or mobile device. Real-time tracking of mobile devices, or even release of records which contain similar information, by or to law enforcement agencies without a warrant would appear to bring us very near to an Orwellian situation in which Big Brother always knows where we are.