Chris Christie ignores the Constitution with warrantless cell phone tracking

by: Scott Weingart

Mon Apr 27, 2009 at 12:15:30 PM EDT

Christie and other government officials who claim that warrantless cell phone monitoring program is "lawful" rely on two statutes to support this assertion. Both the Pen Register Act and the Stored Communications Act establish a standard less demanding than "probable cause" for the state to obtain a court order forcing cell phone companies, ISPs, and other entities to give up electronic records. Both of these acts were intended to extend privacy protections to certain communications that were previously completely unprotected by affording them some measure of protection. US Attorney Christie, however, blatantly disregarded Congress's intent, interpreting the acts as expanding, rather than limiting law enforcement surveillance powers.

While his disregard for the legislative intent of the two acts weakens Christie's position, his interpretation of the federal law ultimately fails because it runs afoul of the highest law in the land, namely the United States Constitution. There is a principle in constitutional law, called the Avoidance Canon, that states that given two reasonable constructions of a statute, if one conflicts with the Constitution and the other does not, the one that conflicts with the Constitution is always incorrect. Christie's overzealous reading of federal statutes is therefore not valid, and his claim that warrantless monitoring is "lawful" is false.

While neither the Supreme Court nor any US Circuit Court has yet ruled on warrantless cell phone tracking, a majority of federal district court judges who have considered the issue have found such searches to be unconstitutional. The judges who did rule in favor of the government endorsed only the least precise and invasive methods of tracking. While US Attorney, Christie used the most precise and invasive technology available-GPS tracking that can pinpoint the location of a cell phone to within 20 feet. The US Attorney's office continued their warrantless monitoring program even though it could be effectively thrown out when the Third Circuit Court of Appeals (which covers New Jersey) rules on a pending case (an Electronic Frontier Foundation amicus brief on the case can be found here).

Below the fold, I present the most compelling Consitutional argument against warrantless cell phone tracking. I contend that tracking the precise (to within 20 feet) location of a cell phone without a warrant is, in general, an unreasonable search, and thus a violation of the Fourth Amendment.

Blue Jersey readers who are interested in preserving privacy and free speech and promoting innovation in new media should visit the Electronic Frontier Foundation's website. Despite being less than 20 years old, the EFF has become the preeminent advocacy group for civil liberties online. The EFF is, in a sense, the ACLU of the 21st century.

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.

Whether or not an act of government surveillance requires a warrant under the fourth amendment depends in large part on whether or not that act satisfies the definition of a "search." In his concurring opinion Katz v. United States, Justice Harlan established a two-part test to determine what constitutes a "search" under the Fourth Amendment. A government action constitutes a "search" if and only if

1. the government intrudes on an individual's "actual (subjective) expectation of privacy," and
2. the expectation is "one that society is prepared to recognize as 'reasonable.'"

Thus whether or not some government action is a search depends mostly on whether that action intruded on a place where society recognizes a reasonable expectation of privacy. The scope of the Fourth Amendemnt protections against unreasonable searches and seizures depends on how broadly or narrowly we define "private areas." While the canonical example of a private area is the home, the Court has also ruled that people also have a reasonable expectation of privacy in their pockets, purses and handbags-all common places to store a cell phone. While privacy is broadly protected in "private areas" such as the home, it is largely unprotected in public areas, such as open fields.

The court has consistently held in the past that law enforcement must, absent exceptional circumstances, obtain a search warrant if it wants to use technology not commonly available to the public to ascertain facts about a private space that can not be observed through sensory observation. In Kyllo v. United States, a majority of five judges, all of whom are still on the court, agreed that the police use of a thermal imaging device to detect an abnormal amount of heat emanating from a home constituted a search under the fourth amentment. In his opinion, Justice Scalia held,

Where, as here, the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a "search" and is presumptively unreasonable without a warrant.

In an earlier case, United States v. Karo, the court ruled that using a government-installed beeper on a can of ether to determine that the can was in someone's home amounted to a searching that home.

The precedent on warrantless tracking seems clear: A cell phone (or other device) may not be used as a proxy to track an individual when that cell phone (or device) is located in a private place, unless the police have obtained a warrant. As most people carry their cell phone in a pocket, purse, or handbag, real-time tracking of cellphones is very likely to result in a violation of its owner's right to privacy.