The Department of Justice wants to be legally authorized to track anyone, at any time, by means of his cell phone. The DoJ adamantly resists the suggestion that a judge should be required to issue a warrant in order for the DoJ to do this.
Jason Weinstein, a deputy assistant attorney general in the Department of Justice’s criminal division, told a panel at the Congressional Internet Caucus Advisory Committee’s “State of the Mobile Net” conference yesterday that requiring a search warrant to obtain location tracking information from cell phones would “cripple” prosecutors and law enforcement officials.
The economist says this: “When the price of something falls, more will be demanded.” Removing the warrant requirement dramatically lowers the cost. To allow the government to track cell phone location without a warrant will increase the amount of tracking.
The entire population could be tracked 24×7 if technology costs fall far enough. You know they will fall. So does the Department of Justice.
There is something called the Stored Communications Act, which “authorizes the disclosure of cell phone location data with a lesser showing than the probable cause requirement demanded by a search warrant.”
Fortunately, the Supreme Court has announced restrictions of this. In the case United States v. Jones, the Court said that the warrantless attachment of a GPS device on a car violated the Fourth Amendment’s right to be free from unreasonable government searches.
There is now a case in which the government’s right to monitor cell phone location should be limited to warrant-authorized tracking. All jurisdictions should be bound by this rule.
Noting that Jones requires a warrant for GPS data, but that courts have reached conflicting opinions on whether a search warrant is necessary for cell phone location tracking records that are held by wireless company providers, he rightfully noted “there really is no fairness and no justice when the law applies differently to different people depending on which courthouse you’re sitting in.” But unfortunately, the DOJ’s solution for this problem is for Congress to say that cell phone location tracking records held by third parties — typically the cell phone providers — are not subject to the search warrant’s probable cause requirement, as it would “cripple” law enforcement. To be clear, despite Weinstein’s comments that he’s only speaking for himself, DOJ’s explicit position is that no warrant is necessary, as that’s what they’ve consistently toldcourts, including the Fifth Circuit.
The problem with the DOJ’s position is that it fails to take into account privacy. The only way to ensure “fairness” and “justice,” is to demand that our Fourth Amendment rights not be violated by law enforcement working closely with cell phone providers to access your location information without your knowledge. We’ve already seen that despite the ruling in Jones, law enforcement and the wireless industry are finding ways to continue their pre-Jones practices of warrantless surveillance amid a stunning lack of transparency.
The cost of snooping will fall. The best way to prevent an increase of snooping by the government is to impose the Constitutional requirement that a warrant be issued before this snooping can lawfully begin.
The executive branch of the government is relentless in taking away our liberties. We can only hope that the judicial branch will place more limits on this. The legislative branch could stop it by cutting back on spending. There is little hope in this regard.