Cell phones track your location, and 90 per cent of Americans have them. So if the government can use that technology to follow your movements-without getting a search warrant-it's a massive, illegal threat to the privacy of all of us, the ACLU argues in a friend-of-the-court brief.
Before tracking anyone's location and movements, the brief contends, the government must satisfy the requirements of the Fourth Amendment. Failure do so, says David McGuire, staff attorney of ACLU-CT, "violates the Constitutional right to be free from unreasonable searches and seizures." Almost all Americans, he adds, "carry a cell phone and expect their whereabouts to be private. Getting this information from cell phone data is really a modern day search."
McGuire worked on the amicus curiae brief, in which ACLU-CT joined the national ACLU and the Electronic Frontier Foundation. The case involves the July 2008 armed robbery of a Webster Bank office in Berlin. Without seeking a warrant, police obtained cell phone tower location for all incoming and outgoing calls from 180 different phone numbers, and then used that data to track down other possible participants in the robbery.
In acquiring the telephone records, police relied on a 1986 law that in some circumstances requires only that police certify that the information is "relevant and material to an ongoing investigation." In a number of cases, the amicus brief says, it appears that such applications are unchallenged and remain under seal.
Arguing that a higher standard should apply, the brief relies on a 1984 U.S. Supreme Court decision that said that using a hidden tracking device to locate people in places where they can expect privacy was the same as conducting a search without a warrant. In United States v. Karo, the Court held that using an electronic device to infer facts about "locations not open to visual surveillance" was just as unreasonable as searching the location without a warrant. In another case, the Supreme Court in 1987 held that video surveillance of an individual's back yard required a warrant even if police or passersby could have seen the back yard by "a glance over the fence."
Since those cases were decided, information tracking has become more sophisticated, permitting the government to obtain at low cost a continuous stream of information about a person's past movements and associations. This threatens traditional expectations of privacy protected by the Fourth Amendment, the ACLU argues.
More at the ACLU national website:
Amicus Curiae brief in U.S. v. Luis Soto[850k]