Rt | August 20, 2013
In recent weeks, two cert petitions were filed seeking review of whether the Fourth Amendment covers police searches of cellphone records upon arrest.
From mobile phone and GPS tracking to license plate reading and domestic surveillance drones — not to mention recent revelations of widespread abuse of surveillance capabilities by the National Security Agency — these cases and many others highlight major questions that remain unanswered regarding how privacy rights of Americans can co-exist with the use of rapidly evolving technologies.
State and federal law enforcement agencies have wasted no time seizing on gaps and omissions in established legal precedent to justify vast, routine surveillance of the American public which tests Fourth Amendment rights.
On July 30, a petition was filed in Riley v. California challenging a previous ruling in a California appellate court that affirmed the petitioner’s convictions, which stemmed in part from a questionable search of his smartphone in 2009 following a traffic stop for expired license plates. And late last week, the US Department of Justice filed a petition in United States v. Wurie asking for review of a First Circuit Court of Appeals ruling that police needed a warrant to access a suspect’s phone records. Regarding Wurie, the government contends a cell phone is no different from any other item on a suspect at the time of arrest. The search pertaining to Wurie occurred in 2007.
On the surface, the two cases have much in common. But in Riley, the phone in question is a smartphone – a Samsung Instinct M800. In Wurie, the cellphone was a Verizon LG flip-phone incapable of maintaining the breadth of information – including internet searches, email, photos and other media – that a smartphone can store.
As of May, Pew Research Center found that 91 percent of Americans own cellphones, and 61 percent of those cellphones are smartphones.
GPS technology has received more scrutiny from courts than cellphones have in recent years. Last week, the Justice Department appeared before a federal court defending its right to shield legal memos that provide guidance to federal prosecutors and investigators for how to use GPS devices and other surveillance technologies from the public. In a sense, the memos were released upon a Freedom of Information Act request by the American Civil LIberties Union (ACLU), though their contents were heavily redacted.
The memos (read here and here) were legal interpretations of a January 2012 Supreme Court ruling in United States v. Jones in which the court ruled the use of GPS technology to track a car’s movements constitutes a “search” within the parameters of the Fourth Amendment. Upon release of the indecipherable legal memos, the ACLU filed a lawsuit seeking the full, uncensored guidelines.
“While we agree that executive branch lawyers should be able to freely discuss legal theories, once those opinions become official government policy the public has an absolute right to know what they are,” wrote Brian Hauss, legal fellow with the ACLU’s Speech, Privacy and Technology Project. “Otherwise, the government is operating under secret law that makes accountability to the people impossible.”
The ruling in United States v. Jones left many unanswered questions regarding the use of other location-monitoring technologies pertaining to, for example, the tracking of cellphones or the use of license-plate readers – not to mention the use of surveillance drones in the US. In addition, the Jones ruling fell short of even determining whether a warrant is necessary to use GPS devices.
Building on the Jones decision, New Jersey recently became a state ahead of the curve in defining rules for law enforcement and privacy rights in the digital age. The New Jersey Supreme Court ruled in July that state police must have a search warrant before obtaining tracking information from cellphone providers.
“Using a cellphone to determine the location of its owner can be far more revealing than acquiring toll billing, bank, or internet subscriber records,” Chief Justice Stuart Rabner wrote in the case’s opinion. “Details about the location of a cellphone can provide an intimate picture of one’s daily life and reveal not just where people go – which doctors, religious services and stores they visit – but also the people and groups they choose to affiliate with. That information cuts across a broad range of personal ties with family, friends, political groups, health care providers and others.”
In June, Montana became the first state to require police to obtain a warrant before tracking a suspect’s cellphone.
In March 2012, the ACLU reviewed records from over 200 local police departments, finding vast, aggressive use of cellphone tracking for emergency and nonemergency uses.
Another ACLU report, released in July of this year, queried around 600 local and state police departments (and other state and federal agencies) via public records requests to assess how these agencies use automatic license plate readers. The civil liberties organization found massive databases of innocent motorists’ location information gleaned through hundreds of millions of “plate reads” by the ubiquitous readers. Data is often stored for an indefinite period of time, revealing just how easy it is for law enforcement – as well as many private companies – to track any license plate with few legal restrictions in place to stop them.
For example, for every one million plates that were read in the state of Maryland in the first half of 2012, 2000 (0.2 percent) were hits, mostly regarding registration or emissions issues. Of those 2000 hits, less than 3 percent (47) were potentially connected to more serious crimes.
In addition, much of this network of readers throughout the nation is in place thanks to a large amount of federal funding – $50 million in the last five years.
Approval of licenses for domestic drones has begun, as RT has reported, even though solid rules for their eventual use in American skies have yet to materialize from either Congress or the Federal Aviation Administration. The FAA expects as many as 30,000 drones in American airspace by 2020.
For now, many local law enforcement agencies are leading the quest for drone-use approval, though requests for commercial drones are mounting. As of February 15, 2013, there were 327 active drone certifications despite there being no regulatory framework in place. However, the FAA did get around to certifying two types of unmanned aircraft for civilian use in the US in late July.
In the meantime, federal government agencies have used drones domestically both out in the open and in secret. The Federal Bureau of Investigation has admitted to already using surveillance drones despite no established law or guidelines for their use. The US Department of Homeland Security has used surveillance-capable drones along the border for years, even allowing other federal agencies to use its fleet to the tune of 250 times in 2012 alone, The New York Times reported.