Court Flip-Flops On Phone Warrant Requirement

As the courts wrestle with technology vs. the Constitution, the process has its up and downs.  Last year the 11th circuit ruled that the government could not get cell phone location data without a warrant.  That doing so was a violation of your fourth amendment rights.

This year the same court overturned last year’s ruling with this logic.  The logic, while twisted, makes perfect sense.

The phone records in question – his phone location data – don’t belong to him.  They belong to his carrier, MetroPCS.  This is in fact, slightly different that a Facebook post or sticking something in the cloud.  The court is saying that he never owned his phone location data.  He owns the phone, but not the data.  The data was created by MetroPCS, stored on their servers and subject to their control.

The legal argument, known as third party doctrine, is well established and basically says that since he revealed this information to a third party, he had no expectation of privacy and as a result of that, the government doesn’t need a warrant to ask the phone company for it.  If you don’t like it, don’t use a cell phone.

In 2012, you may remember that the Supremes ruled that the government could not attach a GPS tracking device to your car without a warrant.

A strange detail in this case – this phone was not a smartphone (no GPS inside it), so the location data came from the tower and was only approximate.  Some legal experts are saying that this means that the ruling, which the court narrowly made, could be interpreted to mean that only business records are affected, not the data from newer smartphones.

Here is an article on the ruling, with a link to the actual opinion.

Different courts have ruled differently on this, so it is possible that the Supremes might take the issue up.  Given their 2012 ruling on GPS tracking devices, it is unclear how they might rule.

Stay tuned because this is not over.

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