Cell Phone Records: “No Reasonable Expectation Of Privacy”
Is there an “expectation of privacy” pertaining to your cell phone’s records? Or any records held by a third party provider?
The Obama administration is arguing that there isn’t:
In that case, the Obama administration has argued that Americans enjoy no “reasonable expectation of privacy” in their—or at least their cell phones’—whereabouts. U.S. Department of Justice lawyers say that “a customer’s Fourth Amendment rights are not violated when the phone company reveals to the government its own records” that show where a mobile device placed and received calls.
In other words, since the provider keeps the records (not you) as mandated by law, those records belong to them and thus should be open to government inspection without permission from you or a court.
Now, there’s an argument to be made in terms of law enforcement needs. For instance, a series of bank robberies took place over a wide area. Combing the records for cell towers in the area of each robbery allowed law enforcement to narrow it down to two cell phone users who made calls in each area just before the robberies. Good police work. But shouldn’t they have to go before a judge and justify their desire to look at these records? I’m not sure they didn’t, but essentially the Justice Department is trying to argue that such a justification and court order should be unnecessary.
Ironic from an administration that was so strident about opposing warrantless wiretaps.
The question is, should those records be considered private? Jim Harper argues at Cato that those records are the modern equivalent of “papers and effects” protected by the 4th Amendment and that the court has misinterpreted that since 1967.
These holdings were never right, but they grow more wrong with each step forward in modern, connected living. Incredibly deep reservoirs of information are constantly collected by third-party service providers today. Cellular telephone networks pinpoint customers’ locations throughout the day through the movement of their phones. Internet service providers maintain copies of huge swaths of the information that crosses their networks, tied to customer identifiers. Search engines maintain logs of searches that can be correlated to specific computers and usually the individuals that use them. Payment systems record each instance of commerce, and the time and place it occurred. The totality of these records are very, very revealing of people’s lives. They are a window onto each individual’s spiritual nature, feelings, and intellect. They reflect each American’s beliefs, thoughts, emotions, and sensations. They ought to be protected, as they are the modern iteration of our “papers and effects.”
I agree with Harper. Technology has changed how those records are kept, but they are still private records between the provider and the subscriber – especially since, for the most part, much of the data recorded is gathered without our permission. What I see in the case by the Obama administration is another attempt at government data mining – domestic intelligence – something which Democrats and libertarians were adamantly against when various schemes were uncovered during the Bush administration.
This attempt is subtly different. Instead of just assuming that there is no expectation of privacy and going ahead and demanding the information, the administration is attempting to have the court okay it first. But the result will be the same – unimpeded access by government to your location at any time (as long as you have a cell phone). It is but a short step from there to do what Harper outlines: data mining from various other providers based on the same argument and with this case as precedence. Result: a profile of you containing private data about your movements, spending habits, places visited on the internet, etc that are really none of the government’s business.
Of course, we all know that
Big Brother government would never misuse or abuse this information, don’t we?
As Harper concludes, this is an imporant case which needs to be watched closely:
This is a case to watch, as it will help determine whether or not your digital life is an open book to government investigators.
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