A federal judge recently ruled that no warrant is necessary for real-time tracking of cell phone data, stating that keeping your cell phone on waives your Fourth Amendment right to due process.
New York magistrate Gary Brown ruled that “cell phone users who fail to turn off their cell phones do not exhibit an expectation of privacy.”
He wrote a 30-page opinion brief explaining his ruling in a case against a physician charged with being paid thousands to dispense prescriptions. Brown ruled in favor of the Drug Enforcement Administration (DEA) which asked for a warrant to compel the cell phone carrier to release real-time tracking data on the physician's phone.
Brown said there was already a valid arrest warrant on the individual, and the cell phone data would help the DEA locate and apprehend him. Furthermore, he claimed that by leaving the cell phone on, the suspect had forfeited his right to privacy.
In the brief Brown wrote, “given the ubiquity and celebrity of geolocation technologies, an individual has no legitimate expectation of privacy in the prospective location of a cellular telephone where that individual has failed to protect his privacy by taking the simple expedient of powering it off.”
The accused physician’s phone was tracked down to a car in Queens, and he was arrested on Mar. 20.
Brown wrote that, given how much data users share with retailers and other applications on their phones, “cell phone users cannot realistically entertain the notion that such information would (or should) be withheld from federal law enforcement agents searching for a fugitive.”
Chris Soghoian, principal technologist and senior policy analyst at the American Civil Liberties Union, called Brown’s opinion “ridiculous.”
“There is a big difference between location information you knowingly share with a select group of friends (or, in fact, the world) and information collected about you without your knowledge or consent,” Soghoian wrote.
Last week the Department of Justice admitted to secretly obtaining phone records for journalists and editors at the Associated Press. According to the AP, Verizon Wireless handed over the records on two journalists' personal cell phones before the Justice Department subpoena could be challenged.
"This is the phone companies putting the interest of law enforcement before their customers, and that's wrong," said Soghoian. "None of them tell users. They all suck."
Metadata in phone records indicates the phone number, time, call origin, call duration and the carrier.