Cell Phones and the Expectation of Privacy

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Cell Phones and the Expectation of Privacy

Ninety-one percent of American adults now own a cell phone, according to a survey by the Pew Research Center. Among those 44 and younger, ownership rises to more than 95 percent. The cell phone is as ubiquitous a piece of consumer technology as we have ever had, and may be the most rapidly adopted in history.

Yet our laws on electronic surveillance remain stuck somewhere between the 1950s and the 1980s, penalizing us for the expansive yet unforeseen powers of the little computer almost all of us carry around in our pocket every day. On Tuesday, for instance, the Fifth Circuit Court of Appeals held that authorities may extract historical cell-phone location data from wireless carriers without a search warrant.

The court relied on what’s known as the third-party doctrine, which entitles the government to get hold of any information you have given to someone else — a wireless service provider.  That doctrine was developed in the late 1970s, before cell phones and the Internet. But even then, it rested on questionable assumptions about the “voluntariness” with which we provide our personal information to third parties — say, the financial data we give to banks or the phone numbers we dial.

As Justice Thurgood Marshall wrote at the time, “Privacy is not a discrete commodity, possessed absolutely or not at all.” In other words, you shouldn’t lose every last shred of privacy simply because you share information with your bank or your phone company.

In 2013, we’re long past the quaint notion that we are “voluntarily” sharing our information with third parties — and therefore removing it from the protections of the Fourth Amendment. Cell phones and other electronic devices occupy a central, even necessary role in our lives.

Given that reality, it is difficult to argue that we have no “reasonable expectation of privacy” — the standard that invokes the protections of the Fourth Amendment — when we use these devices. The idea that our Fourth Amendment rights are not implicated because we live in the 21st century should be laughable, but thanks to rulings like the Fifth Circuit’s, it is still alive.

There is hope that the Supreme Court may be prepared to narrow the scope of the third-party doctrine. In the 2012 case United States v. Jones, the court held that the government needed a warrant to attach a GPS tracking device to a car.

In a concurring opinion, Justice Sonia Sotomayor wrote that the third-party doctrine “is ill-suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.”

In the meantime, Congress should strengthen the existing laws governing access to our electronic communications, however dated they may be. To that end, a bill introduced earlier this year by Sen. Ron Wyden, Democrat of Oregon, and Rep. Jason Chaffetz, Republican of Utah, would require authorities to get a warrant in most cases before seizing geo-location data from mobile devices. In May, Montana became the first state to require a warrant for tracking people through cell-phone location data; at least a dozen other states are considering similar legislation.