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August 15, 2011

Maryland Decision Raises New Cell Phone Issues

Cellphone A recent decision from a Federal District Court in Maryland raises new issues about the ability of the government to obtain location data from cell phones without a warrant.

The case is In Matter of an Application of United States of America for an Order Authorizing Disclosure of Location Information of a Specified Wireless Telephone

In this case the issue before Magistrate Judge Susan Gauvey was whether the government could acquire from cell phones to aid in the apprehension of the subject of an arrest warrant. Significantly, the government did not claim that the subject of the monitoring was attempting to flee, or that the information would be evidence of any crime.

I have written a bit about warrantless GPS tracking used to solve crimes.  (See here and here, for example.)  But this is different. The court described this effort as something new: “the government asks to use location data in a new way — not to collect evidence of a crime, but solely to locate a charged defendant. To some, this use would appear reasonable, even commendable and efficient. To others, this use of location data by law enforcement would appear chillingly invasive and unnecessary in the apprehension of defendants. In any event, there is no precedent for use of location data solely to apprehend a defendant in the absence of evidence of flight to avoid prosecution.”

The court concluded that if the government seeks to use a particular cellular telephone as a tracking device to aid in execution of an arrest warrant, the government must obtain a warrant. This is because the tracking would infringe upon a person’s privacy interest both in his location as revealed by real-time location data and in his movement where his location is subject to continuous tracking over an extended period of time. The court was especially concerned that the electronic surveillance would reveal locations in private locations, like a home, and would go beyond what could be obtained by “physical surveillance or tracking techniques.” 

The target of the search was the subject of an arrest warrant, and therefore has lesser procedural rights.  For example, a search warrant is not necessary for entry into a home to make an arrest.  Nonetheless, the electronic tracking of a cell phone provides, in the court’s view, too much information:  the government would “obtain essentially continuous location and movement data pertaining to a subject of an arrest warrant.”  The court explained:

"The fact that a person is in his or her home at any particular time would usually not be especially revelatory. While the fact of a person's location at random times in other locations might be highly revelatory of private matters, location data over a prolonged period of time has the potential of revealing intimate details of a person's life. . . .  What difference, if any, is there, in terms of a citizen's rights to privacy against his government, between a warrant allowing the search of a particular place for the subject of an arrest warrant and allowing the search of everywhere to locate the particular place where the subject of a search warrant is? If the order is narrowly drawn and faithfully executed, there would arguably be no greater intrusion of third parties' privacy than a search of the suspect's home or other locations under Payton and its progeny, in the furtherance of the legitimate government interest in expeditiously bringing a charged defendant before the Court. An order for location data at one point in time does not appear to invade the privacy of others any more than a search warrant for a third party's home. That is, execution of a traditional search warrant may invade the privacy of persons living in or present at the searched premises at the time of the search. However, a search warrant for location data may invade the privacy of persons not as readily identifiable as persons in a traditional search in the suspect's home, such as persons on the lease of the apartment or employees working at an office where the subject has been located."

The court concluded that this issue is better resolved by Congress, rather than the courts.




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