Federal Court Finds Pay As You Go Phones Not Entitled to Privacy
The Sixth Circuit U.S. Court of Appeals this week found in United States v. Skinner that people are not entitled to an expectation of privacy in the GPS data from pay as you go cell phones. The Defendant, Skinner, objected claiming that he had an expectation of privacy in the phone and the government’s tracking of the phone violated the Constitution. Skinner was being tracked by “pinging” his pay as you go cell phone to determine his location and was stopped and searched at rest area in Texas where the motor home he was driving was found to have more than 1,100 pounds of marijuana. The court summarized its view:
When criminals use modern technological devices to
carry out criminal acts and to reduce the possibility of detection, they can hardly
complain when the police take advantage of the inherent characteristics of those very
devices to catch them. This is not a case in which the government secretly placed a
tracking device in someone’s car. The drug runners in this case used pay-as-you-go (and
thus presumably more difficult to trace) cell phones to communicate during the cross-country
shipment of drugs. Unfortunately for the drug runners, the phones were
trackable in a way they may not have suspected. The Constitution, however, does not
protect their erroneous expectations regarding the undetectability of their modern tools.
The court was referring, in part, to United States v. Jones, decided by the Supreme Court earlier this year, where the court found that placing a GPS tracking device on a car required a warrant and compliance with the details of the warrant.
The Fourth Amendment to the U.S. Constitution reads:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
When interpreting the Fourth Amendment the courts often discuss a zone of privacy or a reasonable expectation of privacy. In this case, the court found that Skinner’s expectation of privacy in the GPS data was ill-placed, partially because he was not the registered owner of the phone, therefore he lacked standing to object to search, since it was not his private property. In addition the agents following Skinner had obtained a warrant for the phone data, so their pinging of the phone to determine its location was not a violation of the Fourth Amendment, because a warrant had issued. Federal Constitutional law has been that unless a warrant was issued because of fraud or misconduct by the police, once it issues, the police may search subject to the warrant, and the evidence may not be suppressed as the police were acting in “good faith” on the warrant.
The court went further, saying in a footnote that because it was “trackable,” no one has a reasonable expectation of privacy in the GPS data of a phone:
We do not mean to suggest that there was no reasonable expectation of privacy because
Skinner’s phone was used in the commission of a crime, or that the cell phone was illegally possessed.
On the contrary, an innocent actor would similarly lack a reasonable expectation of privacy in the inherent
external locatability of a tool that he or she bought.
Two of the three judges on the Sixth Circuit panel held there was no reasonable expectation of privacy in the GPS data that can be obtained from cell phones. The third judge, in a dissent, argued that the data was entitled to privacy protection but that the defendant’s Constitutional right against unlawful search and seizure was not violated because the government had obtained a warrant. In the Sixth U.S. Circuit at least, there is no right to privacy in data transmitted or available from your cell phone.
John L. Fossum is certified as criminal law specialist by the Minnesota State Bar Association and practices criminal defense in state and federal courts. Fossum Law Office, LLC has offices in Northfield and Bloomington, Minnesota and represents people charged with crimes in Minneapolis, St. Paul, Hastings, Red Wing, Shakopee, Faribault, Waseca, Owatonna, Rochester, Austin, Albert Lea, Mankato, Stillwater, Anoka, and elsewhere in Minnesota. Contact Attorney John L. Fossum, at Fossum Law Office, LLC when you need help in a criminal case. Call for appointments at 507-645-0002 or 952-232-5865.