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The Legal Battle Over Cell Phone Location Privacy

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It's just a "routine investigation."

The feds want the location records of MetroPCS and T-Mobile cell phone customers in Texas without bothering to show that a crime was even committed. The U.S. Attorney in Houston asserts that cell phone users have no reasonable expectation of privacy as to their location, and he wants to have the data without showing a search warrant.

So far, a federal magistrate and a federal judge have said "no."

But the feds persist in a live case before the Fifth Circuit federal appeals court. In Re: Applications of the USA, No. 11-20884. The authorities assert that getting your location from a cell phone company is like asking for your recent charges from a credit card issuer, or requesting your latest transactions from your bank, or getting business records from your landlord.

It's not an invasion of privacy for a routine investigation, they say.

Fortunately the Electronic Frontier Foundation, the Electronic Privacy Information Center and the ACLU argue the contrary -- that people do, in fact, want their cell phone location to be private. For example, iPhone users raised hell after Apple revealed in 2011 that the phones stored a 10-month record of a user's location. The company revised its operating system to correct the problem.

Months of Data About Your Location

Did you know that every time you use your cell phone to check email, send a text or make a call, your cell phone relays your location to the cell phone company? And that the company keeps your data for months? 88 percent of adult Americans own cell phones, and the average person uses it 50 times a day.

With your location data the feds can build a profile of your social, political and personal life. They will know your movements, habits, relationships, activities and religious affiliation. Shouldn't the government have to show probable cause that a crime was committed? Shouldn't it have to get a search warrant?

In fact:
  • Customers don't knowingly or voluntarily disclose their location to cell phone companies. It's generated automatically.
  • Customers can't control the type and amount of data collected. The date, the time, the duration and the location of every call are recorded.
  • Cell companies keep months of comprehensive location records about customers.
  • Customers are not notified when their records are handed over to law enforcement without probable cause.
A recent survey found that 77 percent of cell phone users did not want app developers to know their location, according to Harris Interactive -- much less the federal authorities.

It's time to draw the line: the Fourth Amendment gives you an expectation of privacy about your location when you use your cell phone. This is personal information and the feds should have to show a search warrant to get it.

Regardless of how the Fifth Circuit rules, this issue will have to be decided by the U.S. Supreme Court. I reported here two months ago that the Sixth Circuit federal appeals court gave the government access to cell phone location records without a warrant. That conflicts with a 2010 decision by the Third Circuit federal appeals court, which required the government to get a search warrant for location records.

Americans are losing their right to privacy every day. Your right to be free of unreasonable searches will be badly damaged if the government can track you down without even showing a crime was committed. Nobody signed up for a two-year contract to be monitored when they got a cell phone.

Follow Larry on Twitter: @larrybodine

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