By Bob Barr
Americans own nearly 300 million cell phones. These ubiquitous electronic devices are used billions of times every day to make phone calls, place orders, locate destinations, pay bills, text messages, read emails, and browse the web. In a single generation, phone books, road maps, and pay phones have been rendered virtually extinct.
Recognizing the treasure trove of information that can be revealed by or retrieved from these devices, the federal government now wants to use our cell phones and other personal communication devices for something quite different from the purposes for which we purchase and employ these now-essential tools.
In arguments earlier this month before a federal appeals court in Philadelphia, lawyers for President Barack Obama made the case that the government should be able to easily track the location of cell phone users without first securing a warrant. In making this argument, the Obama Administration mimics the position taken by its predecessor.
The government’s reasoning rests largely on two pillars — one legal, the other practical — but both of which ought to be rejected by the court.
Bad guys use cell phones to communicate with each other to arrange drug deals, rob banks, and commit all manner of other crimes. The government wants to know where these lawbreakers are — or where they have been — and one of the easiest ways to do that is to be able to track the places where they used their cell phones. While we all want the police to apprehend those who would do us harm; there is more to the equation than simply making that often difficult task as easy as possible.
The government also relies on the legal fiction that simply by using a cell phone, a person “consents” to a third party (their telecommunications carrier) having information from which their location can be determined. The government then argues that the users have no “expectation of privacy” such as might entitle them to have the government obtain a warrant from a judge before it can access records of where the individuals have used, or are using, their cell phones.
Ask any group of American citizens if they consider that simply by using cell phones they are consenting to let Uncle Sam track their every movement, and the resounding “NO” would be heard from Atlanta to Capitol Hill. Fortunately, the federal magistrate who issued the order which the administration is appealing in Philadelphia agreed with that common sense view. The magistrate’s ruling against the government also happens to be in accord with the clear intention of our Founding Fathers, who crafted the Fourth Amendment to our Constitution. That all-important provision protects each of us against any unreasonable search or seizure, and requires that in most instances the government first obtain a warrant based on probable cause.
These protections against the privacy-invasive position being staked out by the Department of Justice, would be rendered largely devoid of meaning if, by simply using an electronic device to communicate privately, the user opens himself to surreptitious tracking of his whereabouts by government agents.
As noted by at least one of the appellate judges before whom the government lawyer argued, permitting the government to easily and without restraint track the location of cell phone users, would reveal far more than the geographic coordinates from which a call was placed. It might reveal the person was at an anti-government protest, or was attending a political or religious event hoping to be free from government snooping. The person might even have been visiting a paramour with the intent not to reveal that fact to prying electronic eyes.
Uncle Sam should not be privy to such information without a darn good reason – even if this make its job of catching criminals slightly less easy.