On Monday of this week, the New York Times reported on the increase in requests for information cell phone carriers have been receiving from law enforcement officials to aid in surveillance. This article was a response to the recent compilation of data from cell phone carriers on requests for surveillance that was compiled at the behest of a Congressional inquiry.
Certainly, surveillance of individuals by governmental and law enforcement agencies through the use of electronic devices is nothing new. For decades now, courts have struggled with balancing individuals’ privacy interests and the rights afforded by the Fourth Amendment (that secure individuals against unreasonable searches and seizures) with the need for effective investigative methods. The Supreme Court has consistently held that the relevant inquiry is whether the individual being monitored had a subjective expectation of privacy in the activity (phone call, driving, etc.) and if so, whether that expectation was reasonable. If so, the Court has held that the surveillance is a search within the meaning of the Fourth Amendment and that law enforcement and/or the government must have a warrant; and in order to obtain a warrant, probable cause must be shown.
Surveillance and investigation using cell phones creates a different problem. Unlike a wiretap or tracking a car with a GPS device, which is individuated (in that it is one phone or one vehicle), investigations which use cellular information are often not so specific. As the New York Times reports, many cellular providers get requests from law enforcement asking for a “tower dump,” or a listing of the information for every cell phone which has used a specific cell tower for a certain time frame. If this is deemed to be an “emergency situation” an informal request is sufficient and no warrant is required. This means that law enforcement and the government is obtaining information about a large group of people – the majority of which have no relation to their investigation – without having to show probable cause.
Is this a violation of the Fourth Amendment? The short answer is “maybe.” It is arguable that one has an expectation of privacy when using their cellular phone and that this expectation is reasonable. If this is the case, then it would follow that an individual’s privacy rights trump the interests of law enforcement. However, one could also argue that being on a cell phone is like traveling on a road: you expect that people will hear you and even, maybe, know where you are and that even if you think you should have an expectation of privacy it is not reasonable because everybody knows that cell towers can track you. If that argument is accepted, then the behavior of law enforcement and the government is not a violation of the Fourth Amendment.
Relatively speaking, cell phones are still in their infancy as investigative and surveillance tools. That being said, it is only a matter of time until these practices are challenged on Fourth Amendment grounds.