It seems U.S. courts are issuing opinions every day that are trampling our right to privacy.
The latest is the Fifth Circuit Court of Appeals' ruling that law enforcement can troll mobile device GPS data without a search warrant. Makes you wonder how many judges have even read the Fourth Amendment.
The ruling is troubling, and hinges on the Court's interpretation of cell phone location data as a business record willingly turned over to a third party -- the cell phone provider. We disagree with this view. This "third-party doctrine" was established long before things like cell phones and the Internet were commonplace. Clearly the ease with which personal information in transmitted in the electronic age is much different than a decision you might make to turn over written correspondence or a daily agenda. In fact, the use of this new technology most often doesn't even enable us to opt out of sharing information, making it virtually impossible for us to control providers' access to it.
As National ACLU Privacy attorney Catherine Crump writes in a blog entry about the decision:
In defending its application of the business records doctrine, the Fifth Circuit writes: "Their use of their phones, moreover, is entirely voluntary . . . . The Government does not require a member of the public to own or carry a phone." That's true. But good luck hunting for a job or maintaining a social life these days without one.
Common sense and any clear interpretation of the Constitution dictate that law enforcement has no right to demand location information from technology providers without a warrant. This is not "business" information, but is extremely private information about where we visit, sleep, shop and recreate. It reveals deeply personal information about who we are.
Thankfully Montanans are protected from this kind of warrantless intrusion -- at least at the state and local level.
As we reported last month, the Montana Legislature was the first in the nation to pass a measure explicitly prohibiting state and local law enforcement from searching cell phone and other mobile device GPS tracking data without a search warrant.
Even so, our privacy shouldn't be dictated by legislatures on a state-by-state basis. Courts need to keep up with technology and uphold our rights under the Constitution.
