August 27, 2012
Last week a federal appeals court ruled on a subject dodged by the Supreme Court last year in US v. Jones: Whether the government can use your phone as a tracking device without getting a warrant first. Unfortunately the Sixth Circuit decided in a 2-1 opinion that you have no reasonable expectation of privacy in your location because your cell phone is transmitting a signal at all times that can be used to track its location.
This is a disappointing decision because it focuses very narrowly on the fact that signals are voluntarily transmitted from a cell phone and does not take into account the intimate personal details that can be revealed by location information collected over time. The DC Circuit Court of Appeals went into great detail about these types of person details in US v. Maynard (the case that became Jones in the Supreme Court). The court discussed how location information can reveal information about income levels, religious observance, medical details, sexual orientation and many other personal details. The concurring opinion in the Jones case also followed this line of reasoning in concluding that a warrant should be required. The Sixth Circuit unfortunately does not apparently agree.
There is good news elsewhere in this particular fight, however. The California Senate and House of Representatives on Wednesday passed a law with bipartisan support requiring California law enforcement agencies to obtain a warrant before collecting any location information. The law now needs to be signed by the governor before it goes into effect. Governor Brown should do so immediately, although there is some concern, given his prior stance on the privacy of information on cell phones owned by arrestees, that he will veto the bill. That outcome would be bad for civil liberties, bad for customers, and bad for companies seeking a clear rule in an uncertain legal landscape. Brown is responsible for assuring the privacy of the citizens of California, not just the efficacy of its law enforcement. The bill before him reaches that balance and should be signed into law, not vetoed.