Court: If Violating Your Privacy Helps The Police, It's Not Violating Your Privacy

by Mike Masnick
Aug. 16, 2012

In a horrifyingly bad ruling, the 6th Circuit appeals court has said that the owner of a prepaid phone has no 4th Amendment rights in protecting his location info from law enforcement. There have been a number of cases touching on this subject, with a few different rulings back and forth, including more than a few in the federal courts that argue tracking someone's location isn't a 4th Amendment violation. But, even if you grant that, this particular ruling is egregiously bad and poorly argued. The EFF highlights some of the more brain-numbing aspects of the ruling:
In what can only be described as a results-oriented opinion, the court found Skinner had no reasonable expectation of privacy in the cell phone location data because "if a tool used to transport contraband gives off a signal that can be tracked for location, certainly the police can track the signal." Otherwise, "technology would help criminals but not the police." In other words, because cell phones can be used to commit crimes, there can't be any Fourth Amendment privacy rights in them. If this sounds like an over-simplistic description of the legal reasoning in an opinion we disagree with, the sad reality is that the court's conclusion really did boil down to this shallow understanding of the law.
Yes, you read that right. Basically, if you've broken the law, according to the court, you have no 4th Amendment rights. And, then it goes further, by basically noting, because anyone might be a criminal, we might as well remove all of their 4th Amendment rights as well, because doing so might help the police. Of course, this goes against the very basis of the 4th Amendment.

The story involves police tracking a guy accused of being a drug runner, via the GPS in his pre-paid phone, without getting a warrant. The guy, Melvin Skinner, pointed out that this violated his 4th Amendment rights, but, as noted above, the court disagreed.

Julian Sanchez walks through the many ways the court got some rather basic things wrong in their ruling:
The court proceeds through a series of lazy and underdeveloped analogies:
Otherwise dogs could not be used to track a fugitive if the fugitive did not know that the dog hounds had his scent. A getaway car could not be identified and followed based on the license plate number if the driver reasonably thought he had gotten away unseen. The recent number of cell phone technology does not change this. If it did, then technology would help criminals but not the police. It follows that Skinner had no expectation of privacy in the context of this case, just as the driver of a getaway car has no expectation of privacy in the particular combination of colors of the car’s paint.
But it does not follow at all. “What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection,” the Supreme Court explained in the seminal case of Katz v. United States, “But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.” Any member of the public can buy a dog and follow a scent. Any member of the public can view and copy down a license plate number. Any member of the public can view the external paint job of a car. But any member of the public cannot just track the GPS signal of a random cell phone—and if they could, most of us would be extremely wary about carrying cell phones. Unlike all these other examples, GPS tracking as employed here depends crucially on the ability of police to invoke state authority—a seemingly salient distinction the court fails to take any note of.
That's not all. The court seems equally confused about other cases, and both the EFF and Sanchez's link above details other mistakes concerning other case law. This isn't just a case of people having different interpretations. This seems like a clear case of a court not really bothering much with the details or the case law and just seeing one thing: this guy was a criminal and the GPS info was useful in finding him, therefore it must be okay. This is a very troubling precedent to have on the books no matter how you look at it.

And it will impact many Americans. While the focus in the ruling is on the "but he's a criminal!!!!" aspect, it applies across the board to pre-paid mobile phone users (well, at least those covered by the 6th Circuit). And that's about a quarter of mobile phone subscriptions. As the EFF put it, in an effort to make sure criminals get no privacy location privacy rights, the court has killed such rights for everyone else as well -- which is exactly the opposite of how our system is supposed to work.

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