Warrantless Cell Phone Stalking: Can the Government Use Your Phone’s GPS?

Now here’s a really disquieting thought: virtually all new cell phones sold today have some form of passive GPS system (even if the phone itself doesn’t have features that use it). The ostensible purpose is for use in emergencies and 911, but information is information. And the result is that the government, at any time, without your knowledge, and apparently without a court order, can track your location via your phone: put a virtual tail on you.

You’d think that if the government felt it had the right to do this, it would at least inform the public of its new power. But despite ongoing suits by the ACLU and the EFF the government is still mum as to whether it’s done it… even though the documents uncovered so far suggest that they have.

But… I’m honestly not sure how I feel about this.

Kevin Drum discusses the issue here and here, and makes some good points. But he treats the idea that the government needs a court order to track people as obvious. I’m not so sure.

I do think Americans should have some expectation of privacy in their lives, and by and large, when the government wants to target them for any form of surveillance without their knowledge, a court should be involved.

I also think the legal issues over privacy are deeply muddled. The usual legal language used in this area is a “reasonable expectation of privacy.” But courts rarely mean that literally. There are many cases in which defendants pretty clearly did expect and fully believed that their was conduct was private, which should have made things an open and shut case. But often what courts really mean is “whatever reasonable expectation of privacy one might have if they researched the subject in depth.” On that score, the fact that most people don’t know that the government can use cell phone GPS’s to track them, and many don’t even know that their phones have GPS in the first place, will likely not count as a legitimate defense.

On the other hand, the information in question is collected by a private company, and all cell phone users implicitly agree to it in their service contracts. We might complain that no one really reads those darn things… but whose fault is that?

Once that information is collected, it’s no longer really the property of individual users, and if the cell phone companies want to create a database that keeps tabs on the location of every single one of their users over time… well, then can. And if they choose to hand this information over to the police…

The real problem here is that people are living in a world where technology is quickly changing what’s possible, but with very little re-examination of how that might alter the way we live, and what we demand from service providers and in terms of government legislation. And it’s probably going to take some scandals and crises before anything changes, and we as a society confront these sorts of issues head on.

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6 Responses to Warrantless Cell Phone Stalking: Can the Government Use Your Phone’s GPS?

  1. Eric Lee says:

    I’ve been reading along for a while now. I just wanted to drop you a comment to say keep up the good work.

  2. Tom says:

    “Once that information is collected, it’s no longer really the property of individual users, and if the cell phone companies want to create a database that keeps tabs on the location of every single one of their users over time… well, then can. And if they choose to hand this information over to the police…”

    Well, no, actually. For example, my bank gathers all sorts of information about my deposits and withdrawals but they can’t just hand that information over to law enforcement because they feel like it. They need a court order. Have you been following the FISA bill? The phone companies want immunity because they did exactly what you are talking about. They handed information to the government without a court order thus violating the privacy of their customers and opening themselves up to lawsuits. By the way, without a court order none of that information could be used in a court and anything that was gained from the illegally obtained information would be “fruit of the poisoned tree” and would also be inadmissible.

  3. Bad says:

    Opening themselves up to civil lawsuits, yes. But not criminal ones. And the civil lawsuits are based on laws and court rulings specifically regulating taps on private conversations. Banking information is protected by similar protective laws.

    In this case, however, the information is far more akin to something the police often can pull without a warrant: phone records (i.e. what numbers called where, when). There’s no specific conversation involved (i.e. no self-incrimination, etc.), just data about what phones were where when. I’m not familiar with any laws currently on the books that protect such information under a privacy right.

    And part of what I’m arguing is that at some point these sorts of things need to come under consideration when we start to think about what privacy even means given the amount of information out there that can be exploited.

  4. Tom says:

    You are mistaken. The police can not get your phone records without a warrant. Here’s a recent article about the issue of using GPS to locate a cell phone:

    http://seattlepi.nwsource.com/local/361775_missing05.html

  5. Bad says:

    You’re right on full records: I mixed that up with pen registers, which Drum discussed in the article (and I now see aren’t the same things as phone records, per se).

    Still seems like the issue is legally murky though, or why else would this close out the article: “No legal challenges have been filed related to cell locater technology in missing persons cases. But privacy rights advocates say unambiguous guidelines are needed to ensure that the technology isn’t misused. What you’d want is those rules to be in place, and, as far as we know, they are not,” said Rebecca Jechke of the Electronic Frontier Foundation.”

  6. colin says:

    Thanks for the info. As 32 year old electricain my life has seen quite a change. Security can be a doulble edge sord. It even gets more obscure, with wi fi and how information is in the FM waves. And can that info be used by the government?

    Colin

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