Published August 05, 2013
As consumers wonder just how much privacy they have on their mobile phones, some security experts are questioning if and when the nation’s highest court will make a definitive call on the legality of Uncle Sam tracking location data.
Last week, the 5th U.S. Circuit Court of Appeals ruled the government can track location data on phones without a warrant, but that states may also enact their own legislation as to whether or not warrants are necessary. This is the third federal appeals court to rule on privacy issues, adding fuel to speculation that the Supreme Court might take up a case to offer a definitive ruling on cell phone tracking and warrants under the Fourth Amendment.
Privacy laws haven’t stayed pace with technology advances, says Hans von Spakovsky, senior legal fellow at the Heritage Foundation.
A potential Supreme Court ruling could have major ramifications for consumers, he adds. “If no warrant is needed, the government can at anytime it has suspicions about you, track your movements using cell phone information, which they can get very easily.”
Hanni Fakhoury, staff attorney at the Electronic Frontier Foundation (EFF), who litigated the U.S. Fifth Circuit of Appeals cell-tracking case, says until the country’s highest court makes a ruling, the government has the upper hand.
“There are different splits of opinion on the legal issues surrounding cell phone privacy, and the only way to decide is if the Supreme Court resolves this once and for all,” he says. “They ducked the issue in 2010. There needs to be clarity and consistency.”
Until there is a definitive move, consumers should err on the side of caution, Fakhoury says.
“Understand you don’t have full privacy rights, and you need to be aware how your [cell phone] company handles data requests,” he says.
The government is the reason this data is so easily accessed today to begin with, von Spakovzy adds.
“The government mandated that cell phones give the kind of location information that would allow emergency services to get people to help them if needed,” he says.
von Spakovzy says he Congress should pass legislation until the Supreme Court gets involved to ultimately decide the hotly-debated issue.
“The Supreme Court could eventually get this decision, but it’s an area where Congress should get involved and legislate,” he says. “This could save courts from trying to interpret and apply the Constitution. It would be easier if Congress stepped in and set rules about when and how warrants are needed.”