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Grant M. Scheiner - Houston Criminal Defense Lawyer

New Fifth Circuit Court of Appeals Case Upholds Cell Phone Tracking

It’s often said that we live in an era of unprecedented technological advances. In no area is this more apparent than in the field of telecommunications. What a person can now do with say, an iPhone was simply unimaginable even just a few years ago.

The latest buzz is that Apple may soon introduce a feature in its iPhone that will allow users to unlock their phones and conduct transactions with just a fingerprint. If properly developed, this technology could yield huge advantages. But given the recent scandals with the NSA’s mining of data, these advances also have a potential of further undermining our sense of privacy.

To many, a new decision from the Fifth Circuit Court of Appeals is further proof that our civil liberties are erroding as the government’s power to monitor us is growing stronger. That decision held that law enforcement can obtain historical location data  – useful to law enforcement to collect data about a person’s daily movements and habits – from cell phone carriers without obtaining a search warrant.

In overturning US District Judge Lynn Hughes, the Court reasoned that “[a] cell subscriber like a telephone user, understands that his cellphone must send a signal to a nearby tower in order to wirelessly connect his call.” Because – according to the Court – a cell phone user understands the way phones transmits messages, and because he uses a phone voluntarily, he has a lower expectation of privacy, which works to exempt the government from the warrant requirement.

We disagree with this decision and are distressed to see this erosion of the Fourth Amendment’s power. Undoubtedly, this decision is contrary to what we a society would consider a “reasonable intrusion.” As Supreme Court Justice Sonya Sotomayor commented in a case involving GPS tracking, “I would ask whether people reasonably expect that their movements will be recorded and aggregated in a manner that enables the Government to ascertain, more or less at will, their political and religious beliefs, sexual habits, and so on.”

We hope to see statutes enacted to address this problem, a remedy the Fifth Circuit Court of Appeals anticipated: “We understand the cell phone users may reasonably want their location information to remain private… But the recourse for these desires is in the market or the political process: in demanding that service providers do away with such records… or in lobbying elected representatives to enact statutory protections. The Fourth Amendment, safeguarded by the courts, protects only reasonable expectations of privacy.”