Police Officers Do Not Need A Warrant For Cellphone Location Data

What This Means and How The Decision Was Made

Recently, the 4th Circuit Court of Appeals (Eastern and Middle North Carolina,

Maryland and Virginia) ruled that officers do not need a warrant to obtain cellphone

location data.

This decision only affects the states listed above, for now. If it is taken

to the Supreme Court, it will be a decision that affects the nation. What does this

decision mean? This means that every episode that you have watched of Law &

Order in the last few years has predicted the future. Essentially, if the police want to

know where you were, they do not need to have probable cause and obtain a

warrant to figure it out. Government officials can contact your cellphone data

provider and retrieve where your phone was located at the time of any alleged

criminal activity.

How did this happen? Well, in the society we live in, nothing is private. That is

essentially the argument that led to this decision. The Fourth Amendment prevents

the government from invading our privacy. In order to argue that you have a right to

privacy, you must first have an EXPECTATION of privacy. You expect privacy in your

home. You expect privacy…for things you keep private. The government argued that

you do not have an expectation of privacy in regards to your cellphone data,

because you willingly share it with your provider and other third parties. One judge

wrote that you actually request and want your cellphone provider to send your

information to a nearby tower. However, the three dissenting judges (the judges

who disagreed with the main opinion), stated “Even if cellphone customers have a

vague awareness that their location affects the number of ‘bars’ on their phone…

they surely do not know which cellphone tower their call will be routed through, a

fact even the government concedes”.

Initially, in reading about this decision, I firmly sided with the dissent. Right now, I’m

somewhat torn. We live in a society where we share EVERYTHING, so do we really

have an expectation of privacy? We can’t leave our location on for Groupon and

Instagram and expect privacy. On the other hand, the dissent is correct. We know

that we want more bars and better service, but does the average person know how

this actually happens? That our data is being shared with a particular tower? Let’s

be honest, we don’t read the terms of agreement. We just click agree and hope for

the best. It looks like that may soon catch up to some of us.

As a criminal defense attorney, I am already thinking of ways to protect my clients

from this decision. That is my job after all. So go to your uncle, you know, the one

you have been calling crazy. The one that said the government is using cellphones to

track us – and apologize.