Ed Walters / March 11, 2010

Big Brother Is Watching You . . . From Your Pocket

Law enforcement authorities and privacy advocates are eagerly awaiting the Third Circuit’s ruling in: In the Matter of the Application of the United States of America For An Order Directing A Provider of Electronic
Communication Service To Disclose Records to the
Government
.


cc licensed flickr photo shared by alancleaver_2000

In addition to having one of the longest titles we have seen (so let’s just call it In re Application for the purposes of this post), this is a case with serious implications for the 84% of the nation’s population (that’s an estimate of how many American’s currently own mobile phones).

The dispute in In re Application centers around the government’s ability to access your phone’s location data.  As you might already know, your cellphone periodically sends location data to your carrier.  What you might not know is that this happens about once every seven seconds while your phone is on and that depending on the density of cell sites (and whether or not your phone has GPS) this data can pinpoint your location within a few feet.

Allowing government entities to have this type of data can certainly be very useful and desirable – for example, it can help emergency services locate you if you call 911.  But to some, the idea that law enforcement authorities have access to this location data — in other words, access to information about exactly where someone is now and has been (every seven seconds) for days, weeks, or months — it can start to sound a bit Orwellian.

Of course, law enforcement authorities regularly gain access to all kind of information in the course of their investigations — they can even search your home or wiretap your phone.  But in those circumstances, the ability to engage in this type of invasion of privacy comes with a backstop:  investigators must obtain a search warrant from a judge upon a demonstration of probable cause.  And this is precisely what is at issue in the In re Application — whether cell phone users have a reasonable expectation of privacy in their location data such that the government should have to follow similar procedures to access it.

According to the government, the answer is no;  “One who does not wish to disclose his movements to the government need not use a cellular telephone,”  wrote a prosecutor in brief in the case.  Not surprisingly, privacy advocates like the Electronic Frontier Foundation and the ACLU disagree.  Both organizations filed an amicus brief in the case.  You can read the brief, here.

For media coverage of the lawsuit, check out:

Law.com

Philadelphia Inquirer

CNET

New York Times (Editorial)

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