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Geo-Tracking: Should Phone Location Info Require a Warrant?

By Ephrat Livni, Esq. on March 07, 2016 | Last updated on March 21, 2019

It's the American way to expect privacy. The Fourth Amendment to the Constitution guarantees that no warrant shall issue without a detailed description of the person, place, or thing to be searched and probable cause. We expect law enforcement to follow rules that balance our right to privacy with the police's need for information to track down criminals.

But the balance shifts constantly as new technologies are created. Now privacy is threatened electronically, and while the FBI fights Apple over phone encryption, lawmakers are debating warrantless geo-tracking. It sounds fancy but basically the question is whether police should need a warrant to get location info from cell phone towers. Let's explore this.

Warrantless What?

Your phone has a GPS and you can be tracked when you carry it. Also you leave an electronic trail at all the cell towers you pass. Police need a warrant to track a car in real time. Should that also be required for historical location information?

Richard Downing, deputy assistant attorney general at the Justice Department, testified at a hearing at the House Oversight Committee about just this last week, according to National Public Radio. He said geo-tracking gives investigators invaluable information. It has been used to quickly find suspects or victims and to build cases against criminals.

Still, the utility is not the problem. Privacy is. "I find myself in a very difficult spot," North Carolina Republican Congressman Mark Meadows said at the hearing. "And I don't know on many occasions that I've ever gone against law enforcement. And yet this fundamental question that we're here today addressing is ... very troubling, because the expectation of privacy foundationally is what all Americans presume that they should enjoy."

Why Privacy Matters

Congressman Meadows is expressing a concern we should all consider carefully. Just because having easy access to geographic location makes law enforcement easier doesn't mean it's good for society. What harms come with the good? What freedoms do we relinquish when we become prisoners to convenient technology like smart phones? And what comes next, when we're all attached to all kinds of gadgets?

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