The rapid spread of cellphones with GPS technology has allowed police to track suspects with unprecedented precision — even as they commit crimes. But the legal fight is only now heating up, with prosecutors and privacy activists sparring over rules governing the use of powerful new investigative tools.
The U.S. Court of Appeals for the 6th Circuit stirred the debate last week when it supported police use of a drug runner’s cellphone signals to locate him — and more than 1,000 pounds of marijuana — at a Texas rest stop. The court decided that the suspect “did not have a reasonable expectation of privacy” over location data from his cellphone and that police were free to collect it over several days, even without a search warrant.
The decision riled civil libertarians, who warned that it opened the door to an extensive new form of government surveillance destined to be abused as sophisticated tracking technology becomes more widely available. On Monday, six days after the appeals court ruling, the U.S. attorney in Arizona cited it in defending the use of cellphone location data to help arrest a suspect accused of tax fraud.
“We’re looking at the very frightening prospect of an excessive degree of government intrusiveness in our personal lives,” said Gerald L. Gulley Jr., the Knoxville, Tenn., lawyer who represented the drug-running suspect at the Texas rest stop. “I don’t think that people who go out and buy cellphones necessarily contemplated . . . the degree of intrusion in their personal life.” Gulley says he’ll appeal the case.
Many legal experts expect the issue eventually to find its way to the Supreme Court, which touched on it in a January ruling that police violated the rights of an alleged D.C. drug dealer by placing a tracking device on the underside of his car.
About 100 million Americans carry smartphones capable of emitting location data almost continuously. Even some less-sophisticated devices have such capacity, as do the navigation systems in automobiles and some laptop computers. Worldwide, 154 million smartphones were shipped to consumers in just the past three months, according to International Data, a market analysis firm. (The Global Positioning System functions often can be switched off, but that deactivates some phone features.)
Changing technology has long strained the legal strictures of the Fourth Amendment, whose prohibition on “unreasonable” searches and seizures was born of 18th-century law and guides the legal standards for when police can tap phones, use tracking devices and monitor a suspect’s Internet activity.
Cellphones always have been trackable to some degree, as users moved among towers that carried the signals necessary to make the devices work, creating an electronic record in the process. But GPS technology is far more sophisticated, narrowing locations typically to within a few feet. Many smartphones relay location data to central servers throughout the day, as users check traffic, search for nearby restaurants or scan weather maps.