In January, the U.S. Supreme Court tossed out a criminal conviction because Washington, D.C., police had failed to obtain a search warrant before placing a GPS tracking device on a suspect's car.
North Carolina police departments would do well to consider that ruling as they use cell phone technology and records to track people. Cell phones utilize both cell towers and global position satellites to allow communication. Using the technology, it is possible to track the movements of cell phone owners even when they aren't using the phones.
The American Civil Liberties Union recently released a national report examining police departments’ use of cell phone tracking. The report, which included looks at the policies of 40 law enforcement agencies in North Carolina, found a distinct lack of uniformity and little court oversight of their practices. Some police agencies only go looking at cell phone tracking when using the highest standard of probable cause of a crime and after obtaining a search warrant granted by the courts. Others said that they track the data without obtaining a search warrant. Police departments have also bought equipment to track cell phones on their own. And they’ve obtained lists of all cell phones used within range of a specific cell tower, information that can show cell phone records of people who have nothing to do with the investigation being pursued.
In Wilson County, the ACLU found that law enforcement obtained cell phone tracking data where it is “relevant and material” to an ongoing investigation, a standard lower than probable cause. In Chatham County, officers used real-time GPS tracking of cell phones using a “reasonable suspicion” standard, also lower than probable cause. “While the inconsistency of legal standards among different jurisdictions in North Carolina is disturbing, the fact that some agencies do obtain warrants when they have probable cause to track a cell phone shows that such a practice is both reasonable and workable,” said Katy Parker, legal director of the state ACLU. Obtaining a warrant is also smart, ensuring that evolving court standards addressing evolving technology don't undermine criminal cases built by police investigators.
Besides criminal investigations, police use cell phone tracking to find missing people. When a family member contacts police about a missing relative, the agencies often turn to a cell phone provider to see if their data can help determine the person’s location.
No matter the purpose, the ACLU report shows a distinct lack of standards. That lack of standards imperils our right to privacy, our right to be “secure in our persons,” our right to avoid having the government track our whereabouts without permission or without cause. In its report, the ACLU concluded that Congress and state legislatures should update electronic privacy laws to make clear that law enforcement should only track cell phones with a warrant.
Given the specific findings in this state, North Carolina legislators need to take a hard look at following that recommendation and establishing standards that protect privacy rights.