Sixth Circuit: No Expectation of Privacy in Cell Phone GPS Data
Drug dealers, beware. Your pay-as-you-go phones probably have GPS. And, according to a federal appeals court in Cincinnati, police can track the signal they emit without a warrant.
The U.S. Court of Appeals for the Sixth Circuit ruled that the Drug Enforcement Administration committed no Fourth Amendment violation in using a drug runner’s cellphone data to track his whereabouts. The DEA obtained a court order to track Melvin Skinner’s phone, after finding his number in the course of an investigation of a large-scale drug trafficking operation.
The DEA didn’t know much about Mr. Skinner or what he looked like. They knew him as Big Foot, the drug mule, and they suspected he was communicating with the leader of the trafficking operation via a secret phone that had been registered under a false name. Agents used the GPS data from his throw-away phone to track him, and he was arrested in 2006 at a rest stop near Abilene, Texas, with a motorhome filled with more than 1,100 pounds of marijuana.
Mr. Skinner was convicted of drug trafficking and conspiracy to commit money laundering. On appeal, he argued that the data emitted from his cell phone couldn’t be used because the DEA failed to obtain a warrant for it, in violation of the Fourth Amendment.
The question in the case was whether Mr. Skinner had a reasonable expectation of privacy in the data his phone emitted. It’s a question that several courts are wrestling with. Federal law enforcement authorities, as in this case, say that investigators don’t need search warrants to gather such information.
Justice Department lawyers argued in a court brief that “a suspect’s presence in a publicly observable place is not information subject to Fourth Amendment protection.”
Judge John M. Rogers, writing for the majority, agreed:
There is no Fourth Amendment violation because Skinner did not have a reasonable expectation of privacy in the data given off by his voluntarily procured pay-as-you-go cell phone. If a tool used to transport contraband gives off a signal that can be tracked for location, certainly the police can track the signal. The law cannot be that a criminal is entitled to rely on the expected untrackability of his tools. Otherwise, dogs could not be used to track a fugitive if the fugitive did not know that the dog hounds had his scent. A getaway car could not be identified and followed based on the license plate number if the driver reasonably thought he had gotten away unseen. The recent nature of cell phone location technology does not change this. If it did, then technology would help criminals but not the police.
He was joined by Judge Eric L. Clay. Judge Bernice B. Donald, who concurred but disagreed with the majority’s Fourth Amendment reasoning, said the DEA couldn’t have figured out the identity of Mr. Skinner, the make and model of his vehicle or the route he would be driving without the GPS data from his phone.
“It is not accurate…to say that police in this case acquired only information that they could have otherwise seen with the naked eye,” she wrote. “While it is true that visual observation of Skinner was possible by any member of the public, the public would first have to know that it was Skinner they ought to observe.”
A lawyer for Mr. Skinner didn’t immediately respond to a request for comment.
Also See: How to Track a Cell Phone Even When It's Not Being Used: http://tinyurl.com/7lv9fwp
Some Comments:
12:29 pm August 14, 2012
Anonymous wrote :
Clearly the defendant had no expectation of privacy given that the eyes in the sky known as drones can easily observe his public whereabouts.
12:30 pm August 14, 2012
Anonymous wrote :
The real question is why didn’t the police get a search warrant before tracking the GPS signal from Skinner’s phone? The probable answer is that police were tracking and recording the GPS signals from dozens if not hundreds of suspect phones on a random basis until the police latched onto Skinner’s phone. In times past, wiretappers would go into the basement of an apartment building and “rake” the board on which individual phone lines were wired. Once the cops got to the pair of lines for the phone they wanted to listen in on, they hooked up a wire recorder. These searches were mostly done completely outside the law, no search warrants, to get information for shakedown purposes. It got so bad that in New York City, the FBI placed a warning notice on the Manhattan apartment house basement phone box containing the phone line going to Nancy Maginnes apartment. Maginnes was Henry Kissinger’s then girlfriend, now his wife. The FBI warned LEOs (law enforcement officers) not to tap her line.
1:27 pm August 14, 2012
Anon wrote :
Land of the Free?
6:09 pm August 14, 2012
1984 at your doorstep wrote :
“If a tool used to transport contraband gives off a signal that can be tracked for location, certainly the police can track the signal.” This would suggest anything you do on the internet is subject to being tracked as well without warrant as it may help someone traffic drugs. Are they fing serious? Allow me to demonstrate: “If a tool used to transport contraband gives off information (IP address etc..) that can be tracked for location/destination/departure, certainly the police can track that information. Simple, just change ‘signal’ to ‘information’. I’m sure this is being done already. Christ. So much for a constitution when ‘interpretation’ is done by our crooked justice officials. So what we have is a government that can now data-mine (read intrude) their happy little asses off until they find something to act on. So much for privacy. Orwell would be proud.
7:21 pm August 14, 2012
sm wrote :
Phones do not give off GPS signals. There is some conflation of terminology here. Either they were tracking his wireless signal (by observing which cell towers he was on) or they did actually undermine his privacy by requesting GPS location data directly from his phone — which is data NOT normally out in the open for others to see.
10:16 pm August 14, 2012
dcx2 wrote :
Wow, sm is the first person to point out that very interesting fact. He is correct, GPS is a one-way signaling standard, from satellites to receivers. Such receivers do not themselves emit a signal in the GPS band. The only signal the cell phone emits would be the 2G/3G/4G signal between the phone and the tower. Importantly, this signal is encrypted, and the use of encrypted transmissions should demonstrate a reasonable desire for privacy. Additionally, private citizens do not commonly have devices capable of “seeing” such signals, further weighing the balance toward a reasonable expectation of privacy.
3:40 am August 15, 2012
PP wrote :
I agree sm and dcx2. Use of term “gps” seems to be used . I can’t see how one can get gps-data out of normal phone. (unless using some Trojan software or secret backdoor on suspects phone, which would be illegal in this case?)
The police used operators sell-phone position data instead of gps?
3:42 pm August 15, 2012
BobbyG wrote :
“There is no Fourth Amendment violation because Skinner did not have a reasonable expectation of privacy in the data given off by his voluntarily procured pay-as-you-go cell phone.”
So, is this a GENERAL conclusion? Not just limited to “criminals” (or “suspects”)? Moreover, given that the private sector is not constrained by the 4th Amendment, does this imply that cell phone companies (or others) could track, collect, and sell data pertaining to all of our whereabouts ongoing?
4:07 am August 16, 2012
Tim wrote :
What is missing from this and every article I have read so far is what type of “GPS data” was being collected and how. Modern cell phones do collect and send GPS data to the system because of the statutes regarding “enhanced 911″ logging of cellular communications. What has also been used to years, and perfectly legally without violating 4th amendment protections is radio directional tracking. All cellular pones emit radio radio signals and triangulating that signal can be done without directly accessing data on the phone or the content of data being transmitted. Any access into the data on the phone itself or the content of the datastream itself would and should require a court order.
Something else that is notable on this case that seems to be overlooked. The DEA did obtain a court order allowing the phone location to be tracked. This does not imply that ANY phone could be tracked at any time the government chooses. Search warrants are very explicit documents that require probably cause to be issued. The standard to obtain a search warrant is the same as the standard to make an arrest. Search warrants list very explicitly what is to be searched, what is expected to be found, and the evidence to support this. Search warrants are used to collect evidence that a crime had been committed, seize contraband, and recover stolen property. The location data from Skinner’s phone supports none of these things.
“Wiretap” orders are not the same as search warrants. On a landline phone the location of the telephone is always known. Was this the type of order that obtained? From that standpoint the location of the phone may be viewed as fair game.
9:20 am August 18, 2012
mojo wrote :
What gave them the ability to track them was the chip in the phone that’s used in 911 emergencies in order to trace the caller’s location. If you remove the battery from the device that should render it inactive. If you need to make a call veer off course, boot the phone back up, make the call, turn the phone back off, then remove the battery before you go back on your path. the only crime committed here was by the pigs chasing people over harmless plants.
Your questions and comments are greatly appreciated.
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