Who can find your phone?
EFF-Austin is promoting new legislation to require police to obtain a warrant for cellphone tracking. Police can leverage the technology that allows cellphone signals to reach your phone, and that you can use to find your phone when it’s lost, to track your movements. This requires the cooperation of cellphone companies, which are getting a substantial number of requests from law enforcement, usually via subpoena. We feel that this kind of surveillance requires judicial oversight, i.e. a warrant.
Here’s a factsheet:
Problem: Using the data transferred from, received by, and stored in your cell phone or smart phone, police are now able to track your every move without judicial review and without leaving their desks. Our antiquated surveillance laws need updating.
Solution: Amend Article 18 of the Texas Code of Criminal Procedure to:
- require a warrant for locational tracking of individuals (regardless of the type of device) except in the case of a life threatening emergency;
- allow an order for tracking to be sealed up to 180 days unless a judge finds good cause to extend the seal;
- require reporting of aggregate information about the amount, type, and outcome of locational tracking by police agencies in Texas.
Legal framework: Texas law – focused on increasingly obsolete technologies like the Pen Register and Trap and Trace device – was crafted before the invention of the “smart” phone. It does not provide adequate guidance for police, carriers or the public around the detailed locational data smart phones transmit.
- In January of 2012, the Supreme Court in U.S. v. Jones determined that locational data from a tracking device attached to a car constitutes a “search” but did not specify any required procedure.
- In a case now before the Fifth Circuit (case# NO. 11-20884), the Obama administration argues that historical locational data from a cell phone is not subject to the 4th Amendment because it is held by the cell phone company (it is a “business record”) and that people don’t have a “reasonable expectation” of locational privacy.
- New technology makes the distinction between “historical” and “real time” data increasingly blurry.
- It may be years before the U.S. Supreme Court catches up with today’s technology. In the meantime, state law should create a clear and protective privacy standard for Texans