More than 80 percent of adult Americans have a cellphone, and they make heavy use of them: calling for more than 2.3 trillion minutes a year and sending nearly 2.2 trillion text messages annually. And it is fair to assume that a good many of those users consider what they do with their devices to be private. It is far from certain, though, that the Constitution protects cellphone privacy. The courts are starting to give answers to that question.
Even as courts struggle with the issue of whether they have any role to play in reviewing the government’s sweeping global surveillance of all kinds of electronic communications, including cell phone calls and texting, other courts are deeply involved in examining the constitutionality of government monitoring of cell phone use as part of investigations of crime.
This week, in back-to-back decisions, two federal appeals courts explored the privacy issue, and came to quite different conclusions, though in different settings. In both cases, the constitutional issue was the same: whether the Fourth Amendment requires the government to get a court-approved search warrant to monitor cell phone use. One court said yes, the other no.
One of those rulings involved a routine illegal drug case originating in Boston, the other focused on three FBI investigations in Texas. In the Boston case, officers learned where a suspect lived, and got other information about him, by examining the contents of a cell phone that the man had with him when he was arrested. The focus of the Texas investigations remains under wraps but the case involves a request by federal agents to obtain tracking data from cell towers operated by telephone companies – in other words, electronic tracks of the places where a cell phone has been used.
In the Boston case, the officers did not have a search warrant; indeed, they believed that they did not need one. They got access to the man’s cell phone at the police station, and they simply engaged it to get information, just as they might look into his pockets to make sure he had no weapons. They turned out to be wrong about their authority to do that. The Circuit Court of Appeals for the First Circuit had ruled earlier, and essentially reaffirmed on Monday, that the officers’ operation of the cell phone to get calling data was a search, requiring a warrant under the Fourth Amendment.
A cellphone, according to the First Circuit’s view, is not just a telephone; some of those devices have huge electronic storage capacity, and they contain much that is highly personal in nature – photos, videos, messages of all kinds, contacts, Internet searches, purchases, financial and medical records. To the millions of Americans who carry around such devices, with them virtually everywhere they go, they are a trove of private data, that court found.
In the Texas probes, the federal agents were relying upon a federal law, the Stored Communications Act of 1986, which allows access to cellphone data upon a government request based on less suspicion than would be required for a search warrant. In a ruling on Tuesday, the U.S. Court of Appeals for the Fifth Circuit decided that no warrant was necessary. It approved the applications for cellphone tracking data, finding that the location information belonged to the telephone company and was not private for the phone users.
Once an individual makes a call, leaving an electronic data point at the nearest cell tower, that location has been exposed to the telephone company, and the phone user cannot complain if the company later hands that information over to the government, the Fifth Circuit Court said.
Although the facts differ in significant ways, the issue for the courts in each instance was whether the users of the cellphones had a “reasonable expectation of privacy,” one that most people would respect. Over the years, as technology has advanced, the Supreme Court has not moved in a straight line in defining when government use of a new device or method intrudes on privacy in violation of the Fourth Amendment.
Just recently, the Supreme Court ruled that it did not invade the privacy of a person arrested on suspicion of a serious crime for police to use the new technology of DNA testing to take a sample from the suspect to seek a possible link to a different crime. But the year before, the court ruled that police ordinarily should get a warrant before they attach a GPS tracking device to monitor, for a period of time, the movements a suspect made in his car.
In earlier decisions, the court has allowed police to conduct aerial surveillance of someone’s outdoor yard, even though they could not go into the yard at ground level, but the court also barred police from using a heat-sensing device aimed at the exterior wall of a house to see if marijuana was being grown inside. The court also has reached varying results on police authority to use drug-sniffing dogs.
So far, the court has had little opportunity to explore the Fourth Amendment implications of cellphones’ use. In fact, it recently turned down two appeals seeking clarification of claims to cell phone privacy.
But the conflicts among lower courts on that very issue have been growing deeper, thus increasing the chances that the Justices will, perhaps soon, get drawn into a case that provides a clear-cut test. The Boston case may be such a case, because the federal government had fought energetically against the need to obtain a search warrant to examine the contents of a cellphone obtained during an arrest procedure.
And, while the Texas investigations case is not subject to appeal to the Supreme Court, because it only involved an effort by the government to get a cellphone location data order from a court, and there was no formal party on the other side of the case, other federal appeals courts are considering the privacy issue surrounding such data in cases involving actual criminal convictions, and rulings in that setting might well wind up in the Supreme Court.
Lyle Denniston is the National Constitution Center’s adviser on constitutional literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.
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