Court Rules Smartphone Tracking Is OK By Authorities
August 15, 2012

Court Rules Smartphone Tracking Is OK By Authorities

John Neumann for - Your Universe Online

Your smartphone´s location is now available to police authorities, thanks to a federal appeals court which approved this week the fact that authorities do not need a probable-cause warrant to track a suspect via GPS signals from a suspect´s mobile phone, reports David Kravets for Wired Magazine.

The decision boosts the government´s surveillance powers and comes as prosecutors are shifting their focus to warrantless cell-tower location tracking of suspects in the wake of a Supreme Court ruling in January sharply limiting the use of GPS vehicle trackers.

The impetus for the case involves a newly-convicted drug trafficker, named Melvin Skinner, who was part of a cross-country, large-scale drug operation organized by another man, James Michael West.

Skinner had appealed his many convictions: conspiracy to distribute and possess with intent to distribute over 1,000 kilograms of marijuana; conspiracy to commit money laundering; aiding and abetting the attempt to distribute in excess of 100 kilograms of marijuana.

His attorneys argued that the government´s use of his GPS location information from his phone, which led to his arrest, constituted a warrantless search in violation of the Fourth Amendment.

“There is no Fourth Amendment violation because Skinner did not have a reasonable expectation of privacy in the data given off by his voluntarily procured pay-as-you-go cell phone,” wrote Judge John Rogers, in the majority opinion. “If a tool used to transport contraband gives off a signal that can be tracked for location, certainly the police can track the signal.”

In January 2006, Christopher S. Shearer, another participant in the West marijuana operation, was stopped with $362,000 in cash. Shearer was on his way to deliver money on behalf of West, to his marijuana supplier, Philip Apodaca, in Tucson, Arizona. Under questioning, DEA agents learned from Shearer how the West group conducted the drug trafficking operation, writes Cyrus Farivar for Ars Technica.

The agents found out that Apodaca would purchase prepaid cellphones under fictitious names and used pre-programmed contact information to orchestrate drug trafficking. Those phones were then discarded after a period of time. However, by May and June 2006, law enforcement agents received authorization to intercept the communications of two phones established in West´s name.

In an order written by a Tennessee federal magistrate judge, the prosecuting United States attorney received authorization to install a pen register, a trap and trace device, and to receive location data from the call´s origination and termination points, in addition to GPS and ping data from those phones.

Thanks to the intercepted calls between Shearer and West, law enforcement learned of the existence of a truck driver courier, known by the codename “Big Foot,” who turned out to be Melvin Skinner. Based on the location data acquired from both phones, law enforcement agents were able to learn of Skinner´s location en route during his drug delivery from Arizona to Tennessee.

Not surprisingly, he was promptly arrested at a rest stop near Abilene, Texas while driving a “motorhome filled with over 1,100 pounds of marijuana.”

Wednesday´s ruling wasn´t unanimous on all counts, however. Judge Bernice Donald upheld the conviction, based on the police´s “good faith´ exemption” to the warrant requirement. But Donald wrote that the majority was wrong in its theory of the case.

I would not characterize the question before us as whether society is prepared to recognize a legitimate expectation of privacy in the GPS data emitted from a cell phone used to effectuate drug trafficking.

Rather, in keeping with the principle that the law affords the same constitutional protections to criminals and law-abiding citizens alike, the question is simply whether society is prepared to recognize a legitimate expectation of privacy in the GPS data emitted from any cell phone. Because I would answer this question in the affirmative, I cannot join Part II.A of the majority opinion.