Should Probable Cause Be Required for Police to Use Cell Phone Location Data? >
Requiring Warrants for Geolocation Data Will Impede Law Enforcement
Information provided by cell phone towers can help make arrests
June 25, 2012
About Joseph I. Cassilly:
Joseph I. Cassilly is the state's attorney in Harford County, M.D. and a past president of the National District Attorneys Association.
The Founders of our country adopted the Fourth Amendment to protect America's citizens from unreasonable search and seizures. Obtaining geolocation information from a third party has been determined not to be a search, although the U. S. Supreme Court may weigh in on that decision. Even if it is a search, obtaining a warrant is not required for a lawful search when the circumstances of getting the warrant would be unreasonable or frustrate the lawful purposes of the government. For example, a search incident to arrest, a search resulting from exigent circumstances or "hot pursuit", "stop and frisk", and a search of a vehicle, among others, are recognized exceptions to the warrant requirement and do not require a warrant. Some searches such an investigative stop only require police to have a reasonable basis—not probable cause
[See a collection of political cartoons on airport security.]
It is imperative to distinguish between historical data compiled from cell tower hits, referred to as cell-site information, and real time GPS "ping" information. The overwhelming majority of the requests for geolocation data in my jurisdiction are for historical data. These requests are often made to confirm or rebut information which does not meet the probable cause standard. A recent example of this was in a gang shooting in my jurisdiction wherein an anonymous caller who feared gang retaliation if his identity was known gave the police the identity of two gang members who committed the murder. The police received cell phone information regarding these individuals from prior arrest reports. The cell-site historical information for the time of the killing shows that those two cell phones were hitting off the same tower at the same time in the area of the murder. Even with this information, the police do not have probable cause to arrest, but to require probable cause to access historical records would have deprived the officers of this vital information. Gang crimes are acts of domestic terrorism that rule with fear, silence witnesses, and deprive whole communities of life and liberty. Denying law enforcement the ability to use this critical tool is to decide to refuse to allow America's communities to protect themselves from the scourge of gangs.
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- Other Arguments
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#11112
Yes — Law enforcement must have a warrant to track the whereabouts of citizens
RON WYDEN, U.S. Senator from Oregon
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#2751
Yes — The Fourth Amendment protects against cell phone tracking and invasive searches base on geolocation data
CATHERINE CRUMP, Staff Attorney with the American Civil Liberties Union's Speech, Privacy & Technology Project
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#3743
Yes — A warrant should be required for geolocational data just as it is for the search and seizure of physical objects
JASON CHAFFETZ, U.S. Representative from Utah
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#4692
Yes — With no warrant requirement, officers can track anyone and everyone without any reason
JENNIFER S. GRANICK, Director of Civil Liberties at the Center for Internet and Society
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#5682
No — Law's intent is good, but standard of proof can be lowered without invading privacy or handcuffing cops
TREY GOWDY, U.S. Representative from South Carolina
