The Wisconsin Supreme Court recently agreed to take a case that could potentially lead to the Badger State becoming only the second state to require a warrant before tracking an individual based on their cell phone. In May, Montana enacted a bill that made them the first. See H.B. 603, 63rd Leg., Reg. Sess. (Mont. 2013).
In June 2009, Milwaukee police obtained video surveillance of a suspect purchasing a cell phone before fatally shooting a man. The police acquired the number of the cell phone and obtained a court order to track the phone’s physical location. This tracking led the police to Bobby Tate, who they found wearing the same clothes of the suspect on the video and also blood-stained shoes containing the same DNA as that of the shooting victim. Tate alleges that the police obtained evidence against him by violating his Fourth Amendment rights.
The Fourth Amendment protects individuals against unreasonable search and seizures and requires probable cause to obtain a warrant. Despite this, a majority of police departments in America routinely track cell phones without a warrant. The American Civil Liberties Union (ACLU) made public record requests to 383 law enforcement agencies on if they tracked cell phones. Of the 383 agencies, only ten responded that they did not track cell phones, around 190 responded that they did, and the other agencies either refused or ignored the request. Some responses show that police have used cell phone tracking even on individuals not suspected of a crime. Tucson, Arizona prepared a memo on how to obtain information from all of the cell phones at a particular place and time. Cary, North Carolina included a request for all cell phones that utilized certain cell phone towers.
The tracking of one’s location can do more than simply record the coordinates of an individual. Through cell phone tracking, authorities could potentially discover if one regularly patronizes gay bars, is a member of a rehabilitation support group, receives a certain type of medical treatment, attends a protest, supports a particular political organization, or what religion they are a member of. U.S. v. Maynard, 615 F.3d 544, 565 (D.C. Cir. 2010), has recognized the concerning amount of private information that authorities can obtain through GPS tracking. The tracing of an individual’s location can provide more private information than a traditional search. Despite this, there remains little precedent in regards to requiring a warrant to track an individual through their cell phone.
States have only recently begun to recognize the potential constitutional issues with the warrantless tracking of cell phones. In addition to Wisconsin and Montana, Texas and Maine have also recently confronted the Fourth Amendment issue. The Texas Leglature came close to amending a proposed bill to include location tracking to a bill on warrants required for electronic information, but eventually pushed this issue back until 2015. In Maine, both houses passed a cell phone location bill, but the bill has not yet reached the governor’s desk because of a last minute fiscal-note. Despite the delays, the recent attention by multiple states to cell phone location represents a step in the right direction to recognizing that Fourth Amendment rights should apply to present and future technologies.
Joshua Newville is an attorney and mediator based in Minnesota. He litigates employment and civil rights cases, serves as a mediator for civil disputes, and provides employment law advice.