US Judge: Only Powered-Off Mobile Phones Deserve Privacy Protections

A federal magistrate judge in New York recently ruled that cell phone location data deserves no protection under the Fourth Amendment and that accordingly, the government can engage in real-time location surveillance without a search warrant. In an opinion straight from the Twilight Zone, magistrate judge Gary Brown ruled two weeks ago that “phone users who fail to turn off their cell phones do not exhibit an expectation of privacy.”

The case in question involved a physician who the DEA believed had issued thousands of prescriptions for pain killers in exchange for cash. In March of this year, the DEA had obtained a warrant for his arrest, and, not knowing where he was, sought an order from magistrate judge Brown forcing the phone company to provide real-time data identifying the location of the physician’s phone.

Although the DEA agents requested a search warrant and the judge found that there was probable cause to believe that the cell phone location data would assist in the location and apprehension of an individual for whom there was already a valid arrest warrant, the judge later published a 30-page opinion further stating that he didn’t think the government needed to seek a search warrant in the first place.

Don’t Want the Government Tracking You? Turn Your Phone Off

In his puzzling opinion, the judge squarely criticises people naive enough to expect privacy while also leaving their cell phones on when they’re not using them.

Given the ubiquity and celebrity of geolocation technologies, an individual has no legitimate expectation of privacy in the prospective location of a cellular telephone where that individual has failed to protect his privacy by taking the simple expedient of powering it off.
As to control by the user, all of the known tracking technologies may be defeated by merely turning off the phone. Indeed -- excluding apathy or inattention -- the only reason that users leave cell phones turned on is so that the device can be located to receive calls. Conversely, individuals who do not want to be disturbed by unwanted telephone calls at a particular time or place simply turn their phones off, knowing that they cannot be located.

The Catch-22 here is that the only people who the judge believes would have any reasonable expectation of privacy are those whose phones are turned off (and thus, not generating any location data that the government could access, even with a warrant). And it ignores the necessity of keeping your cell phone turned on for communicating with family or for work.

That consumers are dumb enough to willingly share their location using the “Girls Around You” app (which the judge specifically calls out by name), only further justifies covert, warrantless government surveillance:

Given the notoriety surrounding the disclosure of geolocation data to retailers purveying soap powder and blue jeans to mall shoppers, the police searching for David Pogue’s iPhone and, most alarmingly, the creators and users of the Girls Around You app, cell phone users cannot realistically entertain the notion that such information would (or should) be withheld from federal law enforcement agents searching for a fugitive.

This is, in a word, ridiculous. There is a big difference between location information you knowingly share with a select group of friends (or, in fact, the world) and information collected about you without your knowledge or consent. Someone might be happy to share their location with a few friends by “checking in” using Foursquare while at a music festival, but not want law enforcement to access that same information. And, they would still reasonably expect that their location a week later while at an Alcoholics Anonymous meeting or abortion clinic should remain private. Sharing location data isn’t and shouldn’t be all or nothing.

We are also baffled by the judge’s willingness to tie a reasonable expectation of privacy to the use of a mobile phone power button. We’re not sure if the judge has watched the Onion’s spoof news video describing a fictional “Google Opt Out Village” for people who don’t want to be tracked by the advertising company, but the logic in his opinion is consistent with the absurdity of that spoof. If you don’t want Google to track you, stop using all modern technology and move to a remote village. If you don’t want the government to covertly track your phone, turn it off and leave it off. What could be simpler, right?

Republished with kind permission from the American Civil Liberties Union. Image:Brian A Jackson/Shutterstock



    The link to a person willingly installing an app that uses your location data, and an everyday person with their phone turned on does not exist. The person that installs an app that uses location data clicks an OK button that says "This app uses location data... etc". Location sharing is not just implied in that situation.

      Correct, but there's privacy involved as well. Sharing a location with an app does not mean unlicensed third parties. Like the government.

    The bloke's a flogger, plain and simple.

    Another case of a judge having no/minimal technological understanding perhaps?
    Possibly thinking that screen off = "sharing location data" off.

    And misinterpreting the public sharing of location via an app with the "private" sharing of location by triangulation from tower data obtained from the telco.

    "cell phone users cannot realistically entertain the notion that such information would (or should) be withheld from federal law enforcement agents searching for a fugitive."

    Correct - a fugitive, not whoever they damn well please. This is why we have processes such as having to obtain a warrant first. Everything about this is ridiculous...

    And people like America for some reason.....

    Some are actually proud to be American!!

    *shakes head*

      I think you'll find this is more 'out-of-touch judge' than a benchmark of American thinking.
      I'm guessing most of the American readers are perplexed by his leaps, nay rocketjumps of logic too

    " ignores the necessity of keeping your cell phone turned on for communicating with family or for work."

    This is not, and never has been a "necessity". Just 20 years ago, very few people owned mobile phones. Work and families survived. Most people spend far more time playing with apps than actually phoning. It's a tracking device wrapped in bells and whistles. Always has been.

      Pointing out the constraints of yesteryear does not invalidate the realities of the present.
      Whilst I fully agree most people will spend more time playing with apps than using the phone, the argument isn't about usage - it's about availability.
      The world has changed in expectations from 20 years ago - it is now considered unusual to not be able to contact someone immediately, and for a large amount of jobs, it is a requirement.

      Using the same logic, dedicating a room to a piece of furniture that may be used only twice a day seems absurd, and yet most houses have a toilet.

    Replace the words "government agency" with the word "stalker" to find the truth.

    If any random member of the public can't locate you without breaking the law, then a warrant should be required.

    Correct me if I'm wrong but aren't some phones capable of even being remotely turned on, like a "wake on WAN" thing? I remember reading a while ago that nothing short of physically removing the battery can reliably disable monitoring.

    @MaryMagdalene Sorry but this is the real world now. In the modern first world, everyone has phones. Deal with it. We have rights to privacy. The government does not have the right to know everything we're doing. I don't have anything to hide but *I* choose what I want to share. Quite frankly the govt can GAGF if they want to push that.

    Pointless picking faults with the American government. The average brainwashed yank would still find fault with your argument, and ask for a match, even if he were burning corpses in a death camp gas oven. They would still think it's a great idea, because Uncle Sam said so. They have the same mentality as Nazis.

    Only right the average dopey yank cares about is his second amendment. Nation of gun crazy, lunatic morons. Selling bullet proof vests for toddlers in kindergartens, are you kidding me ?

    The justice system in America is the same as the government, bought and paid for.

    Thank Christ I don't live in that insane asylum.

    Last edited 20/05/13 2:46 pm

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