Judge: No Difference Betweeen Cell Phone Tracking and GPS Vehicle Tracking

A few weeks ago, we wrote about United States v. Maynard, a decision from the U.S. Court of Appeals for the District of Columbia Circuit requiring the government to obtain a warrant when it uses a GPS tracking device to monitor someone's movements.

Last Friday, Judge James Orenstein in the Eastern District of New York recognized that Maynard's reasoning also applies when the government tries to retrace a person's whereabouts using historical cell phone location information stored by cell phone carriers. Judge Orenstein rejected each possible factual difference between GPS vehicle tracking and historical cell phone tracking, and concluded that cell phone tracking is just as intrusive to Americans' reasonable expectations of privacy in the details of their everyday lives as GPS tracking.

We believe that Judge Orenstein got it exactly right. In coming to the decision, the court's opinion noted:

a growing recognition, at least in some courts, that technology has progressed to the point where a person who wishes to partake in the social, cultural, and political affairs of our society has no realistic choice but to expose to others, if not to the public as a whole, a broad range of conduct and communications that would previously have been deemed unquestionably private.

Concluding that "[t]he Fourth Amendment cannot properly be read to impose on our populace the dilemma of either ceding to the state any meaningful claim to personal privacy or effectively withdrawing from a technologically maturing society," the court denied the government's application for almost two months' worth of historical cell phone location information that it had sought to access just by showing that it was "relevant and material to an ongoing criminal investigation" – a standard far short of a warrant required by the Fourth Amendment.

The same issue regarding the constitutionality of warrantless access to historical cell site location is currently pending in the 3rd Circuit, where the ACLU submitted a friend-of-the-court brief with the ACLU Foundation of Pennsylvania, the Electronic Frontier Foundation, and the Center for Democracy and Technology. The 3rd Circuit will be the first appellate court to decide this question, and we hope that it, like Judge Orenstein, will understand the necessity for Fourth Amendment protections against invasive technology like cell phone tracking that has the potential to eviscerate our notions of privacy.