Despite the United States Supreme Court decision in Carpenter v. United States requiring law enforcement to obtain a court authorized warrant for historic and current cellphone location data, four main cellphone carriers have continued to sell real-time location data to a host of entities, including federal law enforcement agencies. The Federal Communications Commission (FCC) is proposing fines of up to $200 million against these carriers for the violations.
Cellphone carriers acquire and maintain location information on almost every American with a cellphone. Carriers routinely sell this information to marketing companies and services, such as bank fraud protection, under contracts that require the location-acquiring companies to obtain customers’ consent. Often, that consent is hidden in fine print or an app that simply requires a click of a button. In addition to selling this valuable information to marketing companies, carriers and their intermediaries often sell tracking information to bounty hunters, repo companies, and bill collectors.
Recent news reports indicate a company called Babel Street is selling a tool called Locate X to federal law enforcement agencies. Locate X allows users to “geo-fence” an area; identifying any cellphones in a particular geographic location. The tool can see user data from months before, up to and including where a device has traveled. It was reported that U.S. Customs and Border Protection, the Secret Service, and U.S. Immigration and Customs Enforcement have spent millions of dollars on contracts to use Locate X – all in seeming violation of the Supreme Court’s Carpenter ruling.
Law enforcement yet again has the ability to track a cellphone’s movements without court authorization. If a particular geographic area is under surveillance, or a crime has been committed in the area, law enforcement can obtain the location data of any and all cellphones near that area, as well as where those devices were before and after the relevant time period.
According to recent articles, Babel Street asserts that Locate X is for “research purposes” only, and allegedly forbids law enforcement from using its data as evidence in court. That supposed limitation, however, does not protect Americans from unauthorized surveillance that the Supreme Court sought to protect in Carpenter. Requiring law enforcement to establish probable cause in order to obtain a court-authorized warrant before such intrusive data can be collected helps protect us all from unwarranted government spying and surveillance.
Even with a court order, geo-fence information can lead to erroneous conclusions by law enforcement. Just recently, a Florida man out for his normal bike ride became a suspect in a Gainesville burglary investigation after a geo-fence warrant authorized Google to reveal every person who was in the designated area at the time of the crime. Google collects location information using Bluetooth, GPS, Wi-Fi, cell phone connections and, in the Florida case, the person’s fitness-tracking app. The fitness app showed that the “suspect” passed the burglary victim’s home three times with an hour, leading police to mistakenly suspect that he was the perpetrator casing the home before breaking in.
Hundreds of millions of people carry cellphones with them every day, with the numbers steadily increasing. In turn, law enforcement’s use of geo-fenced information has dramatically risen in the past four years. Allowing unfettered access to our geo-location data violates our rights and allows the government to track our movements without good cause as determined by a neutral party – the court. While judicial procedure is far from perfect, as the Gainesville case demonstrates, it is certainly better than companies selling the information indiscriminately.
This is an ever-developing and expanding area of law. It is important to hire well-versed and adept counsel when dealing with law enforcement’s intrusion into your personal data. We at Stahl Criminal Defense Lawyers aggressively defend individuals charged with complex federal and state crimes. To contact the firm, call 908.301.9001 for the NJ office and 212.755.3300 for the NYC office, or email Mr. Stahl at firstname.lastname@example.org.