By Criminal Defense Lawyer Jeremy Rosenthal
The short answer is yes – but there are ever increasing legal hurdles in law enforcement’s way. The issue is highly complex, evolving and will continue to evolve as technology changes society. No page-long blog will do the topic justice but I hope to give you at least a basic legal primer.
The 4th Amendment to the US Constitution is your right to be free from “unreasonable” searches and seizures from your government. Tracking a person’s phone either in real-time or after the fact has been the subject of intense legal scrutiny for some time now.
Is Tracking Your Phone a Search Within the Meaning of the 4th Amendment?
Courts agree inspecting the contents of your phone, wiretapping a phone call, or affixing a GPS monitor to a persons vehicle are “searches” within the meaning of the 4th amendment. It’s taken some time for courts establish these norms but they have all one by one been accepted.
Much of what constitutes a “search” hinges on what we consider our own “expectation of privacy.” We all have a much higher expectation of privacy in our night stand drawer than in our bag we’re bringing on a plane. So the courts have had to answer the question of where does the smart-phone and the information rank between the two extremes?
The answer is different today than it was in 2005 because of the advances in technology and because of our reliance on smart device technology… and because of both of those things we have different expectations of what is or isn’t private about our phones.
Courts now recognize the contents of our phones today contain work information, banking information, medical information, information about the books we read, the historical figures we admire, who we’re angry with in our family, where we’ve been, where we plan on going in three months or in an hour… In short we have developed an intense dependency and sense of privacy about our phones and the courts know this to be true.
Is Tracking a Phone an “Unreasonable” Search?
Again – what is reasonable changes. A “reasonable” search at an airport on September 12, 2001 might not have been considered as such on September 10, 2001. Our more intense reliance and privacy with the phones make them harder and harder for police to justify tracking or searching.
But understand an “unreasonable” search becomes reasonable if law enforcement can legally and procedurally justify attaining whatever it is they’re looking for. The legal question is just how much justification do they need and whether it requires attaining a warrant?
What Information Can Police Attain About Your Phone & How They Get It
I’m not a technology expert so I don’t know what and how the police can track. I’m sure if they’re not tracking phones in real time already then at some point I’m sure there will be the capability for them to do that. Probation departments and supervision departments can require either software or hardware downloads which allows them to track usage – but that’s not the same thing because in those instances the individual knows – and has often agreed – to being tracked.
Phone Dumps and Downloads
The law is more clear in this area – police need a warrant to get into your phone if you don’t consent to it being searched. What they can get once they get in your phone is a technology question which I don’t have the qualifications to answer… but I’m sure this is an evolving cat and mouse game like everything else in the law/ technology realm.
Police can and often do obtain records from data providers and other third parties such as apps from their private offices. The mechanisms may vary from State to State but the providers may be able to voluntarily provide records to law enforcement based on the terms and conditions of the usage – or as is more often the case – law enforcement can subpoena the records. In some instances the federal government requires third parties to report certain activity to the National Center for Missing and Exploited Children.
Also, third parties who may have records the police want such as Facebook or Twitter or some of your other tech giants can be extraordinarily difficult to deal with for both law enforcement and the defense due to nothing more than their sheer size, amount of data they mine, and amount of users they have. They have legal compliance departments but even Court Orders have the ability to sit in someone’s pile or in-box for who knows how long.
Courts are moving in the direction of requiring warrants to accompany the requests but this is an intensely complex and evolving area of the law. Many of the third-party companies host apps and aren’t in the United States. This adds yet another layer of complexity.
For the police or law enforcement to track your phone after the fact or in real time is currently and will be one of the great battle-lines in courtrooms for the 21st century going forward. This question is truly the convergence and intersection between radically evolving civil liberties and radically evolving technological capabilities.
*Jeremy Rosenthal is certified in criminal law by the Texas Board of Legal Specialization. He is recognized as a Texas Super Lawyer by Thomson Reuters.