Earlier this week the Washington Post reported that law enforcement is collecting cell phone data on hundreds of thousands of Americans absent any suspicion of criminal wrongdoing. This is a disturbing practice that infringes upon Americans’ privacy and raises serious legal concerns.
The report is based upon published responses by wireless carriers to numerous questions Senator Edward Markey (D-MA) posed to them about law enforcement demands for data. These responses reveal that cell phone companies are receiving government requests for “tower dumps” – all data from a certain cell tower over a given time period, usually a number of hours. This provides law enforcement with bulk data on users’ call records, location, and Internet activity, absent a warrant or any showing of a suspicion of wrongdoing by those users whose data are collected. The scale of these requests is increasing; according to the response letter by Verizon Wireless, “The industry as a whole has in recent years experienced a substantial increase in these demands.”
This type of data – where you were at a particular time – can be used to infer personal information, such as religious affiliation, political activities, and romantic relationships. Because the information is so sensitive, Congress is considering legislation that would better protect it. The GPS Act introduced by Senator Wyden (D-OR) and Rep. Chaffetz (R-UT) would require warrants for the location information contained in a tower dump as well as for cell phone tracking.
The standard in current law for cell phone location data that reveals an individual person’s location over time is also unclear. While the Fifth Circuit issued an opinion this year permitting law enforcement to obtain historic cell site location data with just a court order, the Third Circuit recently ruled that judges may order the government to obtain a warrant before accessing such information.
The constitutional standard for cell phone tracking may be inferred from the Supreme Court’s landmark U.S. v. Jones ruling from 2012. In that case, in which the Court ruled that attaching a GPS device to a vehicle to track it constituted a search, five Justices signed concurring opinions signaling their belief that individuals have an expectation of privacy in their location over time and that the 4th Amendment protects such information. Though the Jones case turned on a physical trespass and cell phone location tracking does not, the concurring opinions in Jones have direct implications on law enforcement’s collection of cell phone location data and may impact other types of revealing data as well. In her concurring opinion, Justice Sotomayor stated that the basis for requiring a warrant to track location was that the monitoring at issue “reflects a wealth of detail about her familial, political, professional, religious, and sexual associations,” and “the Government’s unrestrained power to assemble data that reveal private aspects of identity is susceptible to abuse.” This is just as true of call records and Internet activity as it is of location data.
Law enforcement’s mass collection of phone data is overly invasive, susceptible to abuse, and based on unclear legal authority. We applaud Senator Markey for his diligence in bringing this surveillance activity to light, and are hopeful that Congress will enact the GPS Act or similar legislation to ensure it is prohibited in favor of measures that focus investigative resources on wrongdoers without unduly invading the privacy of law abiding Americans.