The Constitution provides a clear and simple rule for any time the government wants to search someone: it has to get a warrant, except in cases of emergency. However, the ACLU has documented how police across the U.S. are sidestepping that requirement when tracking people's location using their cell phones.
The ACLU notes that nearly all of the more than 200 police departments in its report said that they track cell phones; however, only a fraction of those departments get a warrant from a judge.
These police departments are, literally, writing their own rules when it comes to procedures for tracking cell phones. The reason: the current law, the Electronic Communications Privacy Act (ECPA), gives insufficient guidance because it is more than 25 years old -- that's older than the Web -- and passed when cell phones were the size of bricks.
Technology has advanced at breakneck speed since 1986, but little has been done to revamp ECPA. As a result, the law is a crazy quilt of confusing standards that have been interpreted inconsistently by the courts, creating uncertainty for law enforcement agencies. The law fails to adequately protect the vast amounts of personal information generated by today's digital devices -- such as location information that tracks your cell phone. And law enforcement must contend with rules-- if they even follow any -- that change from jurisdiction to jurisdiction.
Writing about the ACLU project, the New York Times said:
The issue has taken on new legal urgency in light of a Supreme Court ruling in January finding that a Global Positioning System tracking device placed on a drug suspect's car violated his Fourth Amendment rights against unreasonable searches. While the ruling did not directly involve cell phones -- many of which also include GPS locators -- it raised questions about the standards for cell phone tracking, lawyers say.
The police records show many departments struggling to understand and abide by the legal complexities of cell phone tracking, even as they work to exploit the technology.
The ACLU report is clear evidence that outdated and conflicting interpretations of the law meant to protect our electronic privacy are leading to violations of our rights.
Citizens deserve stronger privacy protection, and the police deserve better than a best guess at what the law requires. Congress needs to reform ECPA, creating a clear, uniform environment for law enforcement, while at the same time provide adequate privacy protections for our personal data.