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Smartphone GPS Tracking

With technological advances rendering complex cellular devices increasingly affordable, the majority of the world population is now using smartphones. Further, applications that employ global positioning system (GPS) tracking allow these worldwide smartphone users to take advantage of location-specific information and social networking. In addition, GPS technologies have aided law enforcement agencies in gathering evidence during criminal investigations. However, this convenience, and potential for enhanced public safety, brings the risk of sacrificing the privacy guaranteed to U.S. citizens by the Fourth Amendment protection against unreasonable searches and seizures.

In particular, courts have been concerned with whether a warrant should be required for the government to search cell phones to obtain location data. The statistics regarding police cell phone tracking practices—compiled in an American Civil Liberties Union (ACLU) report—convey the extent and significance of this issue. Of the hundreds of local law enforcement offices surveyed throughout the nation, nearly 95% reported tracking suspects via cell phone GPS data such as international calls, text messages, and emails. Although, some jurisdictions required a search warrant before engaging in this type of GPS tracking, however, some did not.  In any event, the applicable legal standards lacked consistency or clarity.

What are the Legal Concerns?

Considering the array of personal information that may be stored on a cell phone today—including details of daily activities, conversations, and locations—there is little, if any, support for warrantless searches of these devices. To the contrary, warrantless cell phones searches risk violating fundamental constitutional rights of privacy, free speech, or association. Moreover, because of the communicative nature of cell phones (especially smartphones), any fundamental right violations are likely to reach beyond the immediate victim to everyone they use the phone to contact.

The recent Eleventh Circuit decision in United States v. Davis illustrates the tension between Fourth Amendment rights and law enforcement needs for GPS tracking. In that case, Davis appealed his criminal robbery convictions claiming they were based upon GPS tracking data obtained via a warrantless search of his cell phone in violation of his Fourth Amendment rights. The appellate panel agreed with Davis and held for the first time that a warrant is necessary before law enforcement can use tracking information from cell towers, yet that holding was vacated when the Eleventh Circuit agreed to rehear the case en banc.

While the outcome of that rehearing is to be determined, AT&T has filed an amicus brief highlighting the potential for this novel decision to impose compliance costs on cell phone providers who receive thousands of demands for information to aid legal investigations. Moreover, companies like AT&T that wish to avoid liability are adding to the existing pressures to clarify this area of law.

In sum, the rapid development of cell phone technology has outpaced the development of privacy laws. During this period of questionable legal development, consumers should proceed with caution in communicating and storing information on smartphones and other devices capable of GPS tracking. Similarly, cell phone providers and other companies in possession of GPS location data should monitor the laws in this area to avoid revealing private information that could result in liability.

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