NYTIMES Editorial, June 13, 2014
The capacity of cellphones to track people’s movements and provide a vivid picture of their private lives poses a substantial and growing threat to privacy.
That is why a federal appeals court ruling on Wednesday restricting the government’s access to location data stored by cellphone companies is so important. In a case involving a man convicted of several robberies in South Florida, the United States Court of Appeals for the 11th Circuit said law enforcement agencies could get location records from cellphone companies only if they first obtained a probable cause warrant from a judge.
The United States attorney’s office in Miami had built a case on the basis of records obtained from his cellphone company showing where he had used his phone over 67 days. The records placed him at the site of the robberies. Prosecutors got access to the data after obtaining an order from a federal magistrate judge by demonstrating that the information was “relevant and material” to their investigation, which is easier to demonstrate than probable cause.
The appeals court did not overturn the conviction because, it said, the government had acted in good faith by first obtaining a court order. But, significantly, it also ruled that “cell site location information is within the subscriber’s reasonable expectation of privacy” under the Fourth Amendment, which protects people “against unreasonable searches and seizures.” This ruling was based in part on a 2012 Supreme Court ruling that said placing a tracking device on a suspect’s car constituted a search under the Fourth Amendment.
The decision breaks from previous appellate rulings siding with the government and ordering phone companies to provide location information under the Stored Communications Act, without a warrant. Many legal experts believe the Supreme Court will ultimately have to step in and resolve the disagreements.