The Lawletter Vol 37 No 7
The courts continue to struggle with the difficulties in reconciling the 18th century principles concerning unreasonable searches and seizures contained in the Fourth Amendment with police surveillance using such modern technological advances as wiretaps of telephones, tracking devices attached to automobiles, heat sensors, or Internet monitoring. The latest source of controversy with regard to the use of technology to infringe upon the privacy of individuals comes from the GPS capability of cell phones.
Last month, the Sixth Circuit Court of Appeals squarely addressed the right of police to use an individual's cell phone signals to locate him and then follow his movements over a several-day period. In United States v. Skinner, No. 09-6497, 2012 WL 3289801 (6th Cir. Aug. 14, 2012), the court ruled that an individual has no reasonable expectation of privacy in the data given off by his cell phone. Analogizing the situation to one in which police locate a defendant by more traditional means, the court found that there was no inherent constitutional difference between trailing a defendant and tracking him via cell phone technology:
The law cannot be that a criminal is entitled to rely on the expected untrackability of his tools. Otherwise, dogs could not be used to track a fugitive if the fugitive did not know that the dog hounds had his scent. A getaway car could not be identified and followed based on the license plate number if the driver reasonably thought he had gotten away unseen. The recent nature of cell phone location technology does not change this.
Id. at *4. The court concluded that law enforcement tactics must be allowed to advance with technological changes in order to prevent criminals from circumventing the justice system.[For discussions of another case, heard in the District of Columbia Circuit and affirmed in the U.S. Supreme Court, that dealt with the issues surrounding the Government's use of GPS, see Mark Rieber, Search and Seizure—Warrantless Use of GPS Device on Defendant's Vehicle Found to Be a "Search", 35 Lawletter No. 12, and Mark Rieber, Search and Seizure—Attachment by Police of GPS Device to Vehicle Constitutes a Search, 36 Lawletter No. 8.