Mostly everyone has a cell phone. A lot of smartphones have GPS capabilities. This can be handy when you are looking for directions and you are lost. However, what about being tracked? For instance, unless you change your privacy settings, your photos will keep track of where you took the picture and what time.
The question the Fifth Circuit Court of Appeals decided is whether the government needs a warrant to track you. In In re: Application of the U.S.A. for Historical Cell Site Data (July 30, 2013 5th Cir. Ct.), the court ruled that obtaining cell-location information without a warrant did not violate the Fourth Amendment.
When we think of the Fourth Amendment we remember that a search and seizure may require a warrant. If there is no expectation of privacy, i.e. in a garbage bag we got rid of, then the government wouldn’t need a warrant. However, if we have an expectation of privacy, i.e. to enter your house, then the government must have a warrant.
An expectation of privacy usually is the crux of a search and seizure case. Here, the ACLU argued that people have a reasonable expectation of privacy when they are being tracked for a long period of time and the data gathered is collected in great detail.
In this case, this argument was not discussed by the court.
Why would this not be discussed? The Fourth Amendment deals with government actions. In other words, the seizure or search has to be collected by the government. In a similar case, the Supreme Court had decided that the government must obtain a warrant if it wants to install a GPS tracking device. See United States v. Jones (2012).
However, this case was found to be different. The reason for this is because the Fifth Circuit Court of Appeals found that the information was collected by a third-party, i.e. the cell phone carrier. The court explained,
Where a third party collects information in the first instance for its own purposes, the Government claims that it can obtain this information later with a [section] 2703(d) order, just as it can subpoena other records of a private entity. We agree.
Id. (citations omitted).
Here, the government was not installing a GPS tracking device. The Government was accessing a business record owned by carriers. The court stated:
… cell site information is clearly a business record. The cell service provider collects and stores historical cell site data for its own business purposes, perhaps to monitor or optimize service on its network or to accurately bill its customers for the segments of its network that they use. The Government does not require service providers to record this information or store it. The providers control what they record and how long these records are retained.
Consequently, the court found that the Government did not need a warrant.