The use of cellular technology by law enforcement to track the movements of or locate subjects has recently been challenged in courts by groups such as the American Civil Liberties Union (ACLU) who question the practice of obtaining cellular records without the issuance of a traditional search warrant (Isikoff, 2010). This paper explores the subject from the viewpoints of the civil liberties organizations and law enforcement.
Innovations and developments in technology are often put to use by criminals to advance their agendas or facilitate their continued flight from prosecution. As criminals find different ways to threaten the security of citizens, it is incumbent on law enforcement to develop new tools and techniques in pursuit of those who would threaten the security of others through their actions. The use of information developed from the use of cellular technology provides a tool that can be used to locate criminals and detect and identify their networks. However, legal processes often struggle to keep pace with technological developments. This lag-time can create a divide between those who value keeping citizens safe and those whose focus is on protecting the rights of citizens, to include criminals.
The use of historical and real time cellular phone data to determine a subject’s movements prior to, during the time of a crime, or to locate a subject, is becoming more widely used and accepted as an advanced technique in law enforcement communities. These techniques have been useful in locating violent felons, victims of kidnapping, and in the prosecution of accused offenders. Cellular phone tracking is a technique through which law enforcement can either actively (real time) or historically, through data analysis, track a person’s movements. Though the initiation of a track requires a legal process, a court order, or subpoena, the media has dubbed the technique ‘warrantless’ (McCullagh, 2010). The implication being that little, if any, legal process based on probable cause is necessary for law enforcement to initiate a track or request records. Partially resulting from this misrepresentation the civil rights organizations and law enforcement have lined up on both sides of this privacy issue.
While law enforcement continues to utilize established legal process to request cellular information about customers from providers, civil liberties organizations are pursuing the matter through the courts. Though the Supreme Court has yet to hear a case directly concerning active or historical cell phone tracking, a recent Philadelphia Third Circuit Court decision sided predominantly with law enforcement by providing that the tracking of cellular phones does not require a traditional warrant as called for by the Fourth Amendment (McCullagh, 2010). In the Philadelphia case the government successfully argued that a customer did not enjoy a reasonable expectation of privacy in the location of their cell phone as the information is already shared with another party, the cellular provider (McCullagh, 2010). However, the success or failure of this argument may depend on the outcome of the future cases to be heard by the higher courts.
Two of the principles that come into conflict when debating this topic are the government’s responsibility to provide for the security of its citizens and individual privacy rights. Yet, as in many civil liberty cases, provisions for the security of citizens takes a back seat to ensuring that criminals are provided those rights bestowed upon all citizens of the United States by the Fourth Amendment of the U.S. Constitution (U.S. Const. amend. IV), and citizens of the world by article 12 of the Universal Declaration of Human Rights (“United Nations,” 1949), both of which afford persons be granted legal protection of their right to privacy.
The Fourth Amendment provides: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized (U.S. Const. amend. IV).
A warrant is a detailed statement made by law enforcement and sworn to before a judge, or a magistrate based on probable cause that a crime has been committed. Though probable cause depends on the circumstances of individual cases, it is generally defined as a level of facts or circumstances that would lead a reasonable person to believe that a crime has been committed (Doyle, 2006). Similarly, a court order to initiate an active track of a cellular phone, for all but exigent circumstances, requires a detailed statement made by law enforcement and sworn to before a judge or magistrate based on probable cause that a crime has been committed as well as an ability of law enforcement to articulate why they believe the cellular phone/number being tracked is in the possession of the offender. In the case of exigent circumstances, where there is a reasonable belief that a life, or lives, are in imminent danger, an order may be served upon a cellular provider without a judge’s signature with the understanding that the case agent or detective will provide a judge’s signature on the court order within 48 hours or discontinue the track.
A court order represents sufficient legal process to regulate the use of this technique, in the opinion of most law enforcement officials, However in a 2010 Newsweek article, Can the FBI Secretly Track Your Cell Phone, Isikoff (2010) identifies points of contention raised by groups opposed to the Justice Department’s use of active and historical cell phone data as a means of tracking and locating criminals. According to Isikoff (2010), civil liberties groups, to include the American Civil Liberties Union (ACLU), are questioning the practice of obtaining cellular records without the issuance of a search warrant. An additional point of contention, according to civil liberties’ organizations, is the secret nature of court orders, which do not require service. This differs from a warrant for the use of a GPS tracking device, which, according to the Federal Rules of Criminal Procedure (2011), requires that a copy of the warrant is served upon the person being tracked within 10 days of the discontinuation of the use of the device.
The ACLU has taken the lead in standing against law enforcement’s use of cellular tracking techniques. They argue that the detailed information provided thorough cellular tracking amounts to a search, requiring a warrant, and imply that the secret nature of the court orders used by law enforcement to obtain information from cellular providers may lead to abuse by law enforcement (Crump, 2010). The ACLU has been joined in this discussion by other libertarian organizations such as the Electronic Frontier Foundation, the Center for Democracy and Technology (Crump, 2010: McCullagh, 2010), and by legislators such as Rep. Peter Welch, D-Vt. Rep. Welch has recently introduced the Geolocation, Privacy, and Security (GPS) Act (H.R. 2168), which, if adopted, would require the use of warrants by law enforcement to request information from cellular providers (“Welch unveils,” 2011).
Law enforcement argues that a warrant is unnecessary and that the current process of court orders is sufficient. The Department of Justice argues that a customer’s right to privacy is not violated when the cellular provider, after being served with a court order, reveals its records (McCullagh, 2010). Correspondingly, in a recent decision discussed above, Judge Posner of the Seventh Circuit ruled that citizens do not have a reasonable expectation of privacy concerning the location of their cellular phones as the information is already shared with another party, the cellular provider (Koppel, 2010).
As with each aspect of this debate, the primary ethical concern is incumbent on the side chosen on the issue. For the civil liberties organizations, the central concern inherent to this discussion is the right of citizens to be secure in their homes and against unreasonable search and seizure without a warrant supported by probable cause (U.S. Const. amend. IV). The ethical concern is that the current legal process required for law enforcement to use cellular data does not live up to the level of scrutiny intended by the authors of the amendment. For law enforcement, the central concern is providing for the security of the general public through the utilization of advanced techniques in pursuit of violent offenders both expeditiously and in such a way as to protect the technique from common knowledge as to preserve its future value. Though both groups are concerned with the ethics of supporting individual rights and protection, which of these concerns they regard as primary divides the sides.
Ultimately the decision to sustain current practices, or to change legal requirements, will fall to the courts, but the issue itself may be more a development of rhetoric than of necessity. The current process of court orders is, usually, equal to in probable cause requirements as that of an application for a warrant. The primary difference is that a court order, in very limited circumstances, allows for the issuance of an order without a judge or magistrate’s signature. Referred to as exigent circumstances, this process is only to be used by law enforcement when there is credible information that a life is in immediate danger and is not commonly utilized in kidnapping cases. This may seem to some as a loophole that would be easily abused by law enforcement. However, while the ability of law enforcement to initiate a track in emergent circumstances could save lives, the debate surrounding the use of court orders protects individual rights and reminds law enforcement to be cautious in their application of lesser standards.
At the heart of this issue is the development of new technologies. Cellular technology, which has become the primary method of communication between individuals in the U.S. has provided an additional means for law enforcement to gather information on the present or past location of subjects. This technology has provided a means for the active tracking and location of fugitives. Though the legal process has evolved to allow law enforcement’s use of these techniques, challenges to the use of the accepted legal process have yet to work through the court system. In this rapidly changing world, it will become increasingly necessary for those who enforce and those who interpret the laws to keep pace with technology to insure that the government can provide security to its citizenry without putting into question its dedication to protecting their rights.