Is Police Tracking By Cell Phone Lawful?

In an era of widespread cell phone use, law enforcement officials regularly follow individuals by tracking their cell phone signals. Is this an infringement upon individual privacy? Should people expect to be able to use their phone without giving any thought as to whether or not their signal would reveal their location and potentially incriminate them?

Those very questions were recently examined by the U. S. Court of Appeals for the Sixth Circuit. In United States vs. Melvin Skinner, the court held that an individual has no reasonable expectation of privacy in the data given off by his cell phone. Likening the situation to one in which police locate a defendant by more traditional means, the court found that there was no inherent constitutional difference between trailing a defendant physically and tracking him via cell phone technology.

The Skinner case, decided on August 14, 2012, involved an alleged drug dealer who argued that his rights had been violated when police tracked him via a pay-as-you-go cell phone. The court ruled that the monitoring of his car –- in which he was carrying a large quantity of marijuana -- was no more of a "comprehensively invasive search" than if the car had instead been identified and then tracked visually, with the search being handed off from one local authority to another as the vehicle progressed.

While some feel that the average police officer is not using this technology on a regular basis, the American Civil Liberties Union has recently obtained records from over 200 police departments and other law enforcement agencies around the U.S. to discover how and why police are tracking cell phones. According to the ACLU, departments are and have been using this technology often -- without a warrant -- even before the recent Court of Appeals ruling in Skinner.

The good news for privacy advocates is that police tracking of suspects using a GPS device is being treated entirely differently. The Supreme Court ruled unanimously in United States v. Jones, 10 U.S. 1259 (2012), that law enforcement agencies must first obtain a warrant in order to place a GPS tracking device on a vehicle. A key distinction from the Skinner case, is that a tracking device is built directly into cell phones, and thus doesn't require physical interaction on the part of law enforcement. Conversely, the Jones court held that the warrantless physical attachment of a GPS to a vehicle violates the Fourth Amendment's protection of "persons, houses, papers, and effects, against unreasonable searches and seizures."

Using a cell phone, with its built-in GPS devices, leaves you with fewer constitutional protections. While these days you can easily search "How to Track Cell Phones" on-line and quickly discover links with instructions on how to do just that, many of us still naively expect that this is not happening to us. Now it's clear for all; this type of tracking is fair game for law enforcement if they choose to use it. The Skinner court's ruling on cell tracking says that Americans have no "reasonable expectation of privacy" when it comes to their cell phones' whereabouts.