Warrant for Location Tracking? DOJ Says No Need

The government needs a warrant based on probable cause to enter your house and search your cell phone, but what about when they collect 6 months of historical location data from your cell phone company? According to the Department of Justice: No warrant necessary.

During a March 3 House Oversight Committee hearing, the DOJ doubled down on this position and even refused to publicly release more information about how it’s interpreting a Supreme Court ruling on cell phone location tracking. ACLU Legislative Counsel Neema Guliani testified before the committee and made it clear that DOJ is out of touch with reality—and with the Supreme Court—calling on the committee to pass legislation requiring a probable cause warrant to obtain location information.

In U.S. v. Jones, the Court ruled that placing a GPS tracker on a suspect’s car and monitoring him for 28 days was a search under the Fourth Amendment. A majority of the justices said that long-term GPS monitoring of a car “impinges on expectations of privacy.”

But DOJ’s policy requires a probable cause warrant only when collecting cell phone location information in real-time, not historical data (even though in a least two instances revealed by an ACLU FOIA, real-time GPS data from a phone was collected without a warrant). The DOJ witness explained that, while historical data could contain private information, a lower standard to obtain it was acceptable under the department’s current policy—even when pressed by committee members who were understandably unable to see why one type of data was less invasive than the other. In her testimony Guliani argued that real-time and historical location data should be treated the same under the law, as both can reveal intimate details about a person’s daily life.

Throughout the hearing, DOJ also refused to commit to publicly releasing information on how it’s interpreting Jones. After a FOIA request by the ACLU, DOJ released two of its Jones memos, but they were almost entirely redacted. Even the Oversight Committee itself called on DOJ at least four times to see the memos. During the hearing, Chairman Chaffetz announced that he and Ranking Member Cummings would finally be given access to read the memos — but would not even be permitted to take notes. Meanwhile the public and others members of Congress would continue to be left in the dark on this crucial question of how our government is applying the law.

DOJ’s position doesn’t match up with the reality of historical location tracking. Guliani’s testimony explained just why the government’s position is so problematic for privacy:

1. Location information is precise. Cell phones regularly communicate with cell towers in the area, and as tower technology advances and more towers are built, the ability to triangulate or otherwise log where a phone is over time is becoming increasingly precise — often at the level of a single block or house.
2. Location information is incredibly revealing. Over 90% of Americans have a cell phone, and about three-quarters are within about 5 feet of those phones most of time (and a little over 10% admit to even using them in the shower). This means that almost every American is generating data about their movements. Data that could reveal how many nights a person sleeps at their home each night, how often they visit a bar, HIV clinic, church, or AA meeting.
3. Location information is being routinely collected. In just 2015, AT&T received around 58,000 requests for historical cell phone location data from law enforcement. For example, there have been cases in Baltimore and Michigan where police collected over 6 months of location data without a probable cause warrant.

Some jurisdictions have recognized just how invasive historical location information can be, but there is little uniformity. Several states have passed laws requiring a probable cause warrant for all cell phone location information, and others have laws protecting real-time but not historical location information. But, the majority of states have no protections in place, and court rulings are inconsistent across jurisdictions.

And as if this all weren’t enough, DOJ’s guidance on Stingrays—devices that can trick all cell phones within range into connecting to them, allowing police to track movements in real-time—has significant gaps, as we have explained here.

It’s time for Congress to step in and protect location data. They can start by passing the Geolocation Privacy and Surveillance Act (H.R. 491), which would require probable cause warrants for all cell location data. In the meantime, DOJ must release a policy requiring a probable cause warrant for all location data and publicly release its Jones memos.

Cellphones are an integral part of American’s lives and can reveal incredibly intimate details about our daily lives. Our laws must reflect the importance of keeping that information private.