Looking to Courts to Protect Cell Phone Privacy

      Justice Samuel A. Alito Jr. seems an unlikely leader of a pro-privacy bloc on the Supreme Court. But he assumed that role in last term’s decision that set some yet-to-be-defined limits on law enforcement use of global positioning system (GPS) surveillance to track suspected criminals.
      Now, the Orwellian specter of a government eye-in-the-sky that Alito identified in his concurring opinion in the case, United States v. Jones, seems to be coming to pass. A federal appeals court gave thumbs-up last month [Aug. 14] to federal agents’ monitoring of a drug suspect’s cell phone signals to track him across country. This is precisely the kind of no-touch electronic surveillance that Alito warned has become common in the wired world today.
      In Jones, the Supreme Court ruled that the government’s attachment of a GPS device to a suspect’s car amounts to a search subject to the Fourth Amendment’s requirement either to get a warrant or qualify for an exception to the warrant requirement. Writing for a five-justice majority, Justice Antonin Scalia reasoned by analogy that back in 1791 the Framers would not have taken kindly to a constable concealing himself inside a suspect’s carriage to gather evidence of criminal conduct.
      Alito, joined by three liberal justices, said Scalia’s simple approach leaves a more worrisome law enforcement threat to privacy untouched. He pointed to the increasingly widespread electronic tracking of our comings and goings that do not involve attaching any device to our vehicles. Examples: closed-circuit video monitoring in public areas and automated toll collection systems for drivers with an E-Z pass.
      Most significantly, Alito continued, “cell phones and other wireless devices now permit wireless carriers to track and record the location of users.” Many cell phone owners may appreciate this functionality: think of the hiker lost in the wilderness. But the cell phone signals tracked by the carrier can also be tracked by the police with the user unaware of being tailed.
      That’s what happened to truck driver Marshall Skinner in July 2006 as he headed east out of Tucson in an RV loaded with about 1,100 pounds of marijuana. Skinner was using a pay-as-you-go cell phone to keep in touch as he headed for his destination in Tennessee. Unbeknownst to Skinner, federal Drug Enforcement Administration (DEA) agents had gotten an order from a federal magistrate authorizing the phone company to release the information needed to monitor the cell phone’s “ping” data so they could track him on the drive.
      When Skinner pulled in for the night near Abilene, Texas, DEA agents were dispatched from Lubbock to go investigate. Skinner denied the agents’ request to search the vehicle, but they went in anyway after a drug-sniffing dog alerted them to the likely presence of narcotics.
      Indicted for drug and money laundering, Skinner sought to suppress the evidence on the ground that the agents’ use of GPS location information emitted from his cell phone was a warrantless search that violated the Fourth Amendment. The judge rejected the motion. Skinner was then convicted and sentenced to roughly 20 years in prison.
      In August, a three-judge panel of the Sixth U.S. Circuit Court of Appeals upheld the conviction. Writing for the majority, Judge John Rogers woodenly rejected Skinner’s invocation of a right to privacy. “When criminals use modern technological devices to carry out criminal acts and to reduce the possibility of detection, they can hardly complain when the police take advantage of the inherent characteristics of those very devices to catch them,” Rogers wrote in the decision. Judge Eric Clay joined Rogers’ opinion.
      In a concurring opinion, Judge Bernice Donaldson said the majority had misstated the issue. “The law affords the same constitutional protections to criminals and law-abiding citizens alike,” Donaldson explained. The issue, she continued, was “whether society is prepared to recognize a legitimate expectation of privacy in the GPS data emitted from any cell phone.” To that question, Donaldson said yes. But she joined in upholding the conviction by relying on the good-faith exception to the exclusionary rule.
      Donaldson’s view is reminiscent of the moment in the argument in the Jones case when Chief Justice John G. Roberts Jr. asked the government’s lawyer whether police could attach GPS devices to the justices’ cars. Suddenly, the case was no longer about criminals but about the constitutional protections for all of us — private citizens or even government officials.
      In his opinion, Alito conceded that technological developments are eroding our expectations of privacy. Even so, Alito argued, some lines need to be drawn. In Jones’ case, federal agents and Washington, D.C., police tracked his movements for 28 days until they finally nabbed him at a drug warehouse. With the evidence thrown out, the government is hoping to put together enough other information to convict Jones again in a trial set for January.
      The line-drawing, Alito suggested, might best be done by legislative bodies, which he said are “well situated to gauge changing public attitudes, to draw detailed lines, and to balance privacy and public safety in a comprehensive way.” Alito considerably overestimates the abilities of Congress and state legislatures. For now, it seems more likely that protecting cell phone privacy will be up to the courts, including, ultimately, the Supreme Court.