August 15, 2012
Sixth Circuit Says No Expectation of Privacy in Location Data From Cell Phone
A three-judge panel of the Sixth Circuit ruled in U.S. v. Skinner that a defendant did not have a reasonable expectation of privacy in GPS data coming from a cell phone that showed his location, and therefore the government did not violate the Fourth Amendment in using that data to track him and locate him.
The case involved a drug-runner's use of a pay-as-you-go cell phone that was equipped with GPS technology. The DEA identified the phone number for the phone and obtained an order from a federal magistrate authorizing the phone company to release subscriber information, cell site information, GPS real-time location, and ping data. DEA agents then pinged the number and determined the location of the defendant. They tracked him for a couple days and arrested him at a motorhome with over 1,100 pounds of marijuana.
The Sixth Circuit ruled that the defendant had no reasonable expectation of privacy in the GPS data coming from the phone and therefore that the DEA did not violate the Fourth Amendment in using the data to track the defendant and locate him. The court explained:
There is no Fourth Amendment violation because Skinner did not have a reasonable expectation of privacy in the data given off by his voluntarily procured pay-as-you-go cell phone. If a tool used to transport contraband gives off a signal that can be tracked for location, certainly the police can track the signal. The law cannot be that a criminal is entitled to rely on the expected untrackability of his tools. Otherwise, dogs could not be used to track a fugitive if the fugitive did not know that the dog hounds had his scent. A getaway car could not be identified and followed based on the license plate number if the driver reasonably thought he had gotten away unseen. The recent nature of cell phone location technology does not change this. If it did, then technology would help criminals but not the police. It follows that Skinner had no expectation of privacy in the context of this case, just as the driver of a getaway car has no expectation of privacy in the particular combination of colors of the car's paint.
Op. at 7.
The court distinguished U.S. v. Jones--the OT11 case holding that the placement by law enforcement of a GPS tracking device on the defendant's car violated the Fourth Amendment--saying that this case involved no trespass by police. Instead, the court aligned the case with U.S. v. Knotts, which held that placement by law enforcement of a beeper in a five-gallon drum of chloroform, with the consent of a chemical company, in order to track the movements of the defendant did not violate the Fourth Amendment because "[t]he governmental surveillance conducted by means of the beeper . . . amounted principally to the following of an automobile on public streets and highways. . . . A person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another."
The court rejected Skinner's argument that the DEA agents never established visual surveillance of his movements, didn't know his identity, and didn't know the make or model of the vehicle he was driving. It said that Skinner's movements could have been observed by any member of the public--and that he therefore had no reasonable expectation of privacy--even if they weren't actually observed by DEA agents.
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Cell phones. Can't live with them. Can't live without them.
Posted by: Stephen Trenery | Aug 16, 2012 4:33:07 AM