Do you like privacy? You’re going to hate this news. A federal court just ruled that law enforcement doesn’t need a warrant to obtain cell tower location data. This is just a year after the same federal court ruled that it did need a warrant, a move some called the biggest privacy wins in recent memory. Now it is a loss.
The ruling came down from the United States Court of Appeals for the Eleventh Circuit and is based on legal precedents from the 1970s. Invoking the so-called “third party doctrine,” the court ruled that the government did not violate the Fourth Amendment when it obtained cell phone records without a warrant in order to track the movements of a suspected (and later convicted) armed robber over a period of 67 days. The lack of warrant was justified, the court now says, since the data was possessed by a third party. “We find no reason to conclude that cellphone users lack facts about the functions of cell towers or about telephone providers’ recording cell tower usage,” said Circuit Judge Frank M. Hull.
You can imagine the implications. If you’re giving data to a third party means that the government can obtain that data without a warrant, that would mean that your private Facebook posts, YouTube videos, Wikipedia edits, Amazon purchases, or pretty much anything you do online could be fair game. “The implications of applying the third party doctrine to these digital records are really wide reaching,” Nate Wessler, the ACLU lawyer who argued the case, told Motherboard, “because we live so much of our lives online, in the cloud or using technologies that leave a trail of digital breadcrumbs behind us.”
The only hope now is for the Supreme Court to take on the case and overturn this bad news decision. We know that the Justices believe cops need a warrant to search cell phones. Whether or not they care to get into the details of how cell phones work remains to be seen. Then again, we also know that federal judges think everybody knows how cell towers store data.
So why would we be so upset about the government being able to track our every move without a warrant anyways? Because the government sucks at enabling the law to keep up with technological innovation—and it’s time to reconsider how the third party doctrine might work in an internet-connected world. That’s why.
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