Government Uses Cellphones to Track Americans, Often Without Showing Probable Cause

One of the ongoing legal issues in the United States is applying the United States Constitution to situations that arise over 200 years after its adoption. When the Constitution was drafted, there weren't telephones, computers, cell phones, email messages, and all the other devices we now use to communicate. So the issue becomes how do you apply the Fourth Amendment, for example, to situations that the drafters of the Constitution never envisioned?

This issue is seen in a story that appeared in the Washington Post dated Friday, November 23, 2007. Apparently, since September 11, 2001, the United States government has required that every cellphone sold in America contain a way that such phone can be tracked used global positioning systems. The idea is that if there is an emergency, and a person is lost, that person can be found if he or she is carrying his or her cell phone.

According to the Post story, this system is now being used by law enforcement agencies to track suspected criminals. In many cases, Federal law enforcement agents are obtaining warrants from Federal Courts without a showing of probable cause to believe that a crime has been committed or is being planned. The following quote is from the first two paragraphs of the story:

Federal officials are routinely asking courts to order cellphone companies to furnish real-time tracking data so they can pinpoint the whereabouts of drug traffickers, fugitives and other criminal suspects, according to judges and industry lawyers.

In some cases, judges have granted the requests without requiring the government to demonstrate that there is probable cause to believe that a crime is taking place or that the inquiry will yield evidence of a crime. Privacy advocates fear such a practice may expose average Americans to a new level of government scrutiny of their daily lives.

Apparently the argument is being made that two Federal statutes, the Stored Communications Act and the Pen Register Statute, authorize the collection of such information on a standard of "specific and articulable factsshowing reasonable grounds to believe the data are relevant to an ongoing criminal investigation."
While some Federal Courts are rejecting this argument, other Federal Courts are accepting it and using warrants for the collection of such data.

One Federal magistrate in New York reasoned that since the government "did not install the "tracking device" and the user chose to carry the phone and permit transmission of its information to a carrier, no warrant was needed." Of course, this argument overlooks the fact that the while the government did not install the tracking device, it required that the tracking device be installed.

In any event, if you are interested in the issue of privcy in an electronic age, you will find this article fascinating. We learned of this article through Talking Points Memo owned and operated by Josh Marshall.