Sep 082010
 September 8, 2010  Posted by  Court, Featured News, Surveillance, U.S.

Last night, I posted a blog entry about why I think we need a bright line on government requests for cell phone location data. In that entry, I expressed my mixed reaction to a Third Circuit appellate decision that said that judges have the discretion to require a warrant.

Consistent with my perspective that there is too much chaos and we need a bright line, consider the following news headlines on the court’s decision. What impression do you get about whether the Fourth Amendment will protect your location data?

Okay, now I know we cannot rely on news headlines or blog headlines to know our rights, but if the media can be left with somewhat different impressions about what the decision said and means, then on some level, yesterday’s ruling muddied the waters more.

Perhaps the headline should have been:  Does the government need a warrant to get your cell location data? Court: it depends on the judge

Our constitutional protections should not depend on which judge is assigned to a case by court roulette.  Yes, I realize that some (most notably the government) would argue that there are no constitutional protections for such data because of “third party doctrine” or for other reasons, but they’re all wrong.   There.  I said it and I’m not ashamed. They’re all wrong.  As a matter of public policy,  Fourth Amendment protections for “property” and “papers” need to apply to our devices and our information, wherever they are located.  Without such protection, our other rights — such as freedom of association and freedom of religion — may be chilled by knowledge that the government can request and obtain our records even though they have no probable cause to suspect we have engaged in criminal activity.

Whatever wrong turns the courts have made on this issue, someone needs to restore Fourth Amendment protections.   Perhaps the courts did not fully appreciate how much information is stored.   Perhaps they did not appreciate how readily such information can be combined with other information.  Whatever the reasons, the government must not be allowed to simply demand records that contain our personal information absent a showing of probable cause.   Simply asserting that records are needed as part of a criminal investigation is just too low a standard.

There is little doubt in my mind that this issue will eventually wend its way to the Supreme Court, but that might take years.   In the interim, how many of us will have our private information just handed over to the government with no or inadequate judicial oversight?

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