The state of Maryland claims it has the right to track you without a warrant whenever you turn on your phone or make a call. The attorney general there even made that argument in a friend-of-the-court brief.
The case involved a person named Kerron Andrews who was tracked by police using a StingRay, a device which tricks phones into thinking it is a cell tower. Andrews was tracked without a warrant.
“While cell phones are ubiquitous, they all come with ‘off’ switches. Because Andrews chose to keep his cell phone on, he was voluntarily sharing the location of his cell phone with third parties,” states a brief filed by state Attorney General Brian E. Frosh in a case called State of Maryland vs. Kerron Andrews.
Frosh’s claim that citizens give up their Fourth Amendment right against warrantless eavesdropping, simply by switching on their phones, has received plenty of pushback.
“In other words, if you don’t shut off your phone, you’re asking to be tracked,” a Motherboard writer wrote.
The American Civil Liberties Union also has criticized Frosh’s position.
“The government has indeed repeatedly argued that there is no [reasonable expectation of privacy] in cell phone location information, in court and out,” Nathan Wessler, a staff attorney with the American Civil Liberties Union told Motherboard. “In cases involving historical cell site location information, the government has danced around this argument, arguing that phone users give up their expectation of privacy in their location information merely by making and receiving calls.”
Specifically, Maryland is arguing that a person gives up his or her right to privacy under the Fourth Amendment when information is turned over to third parties. The idea is that a telecom company is a third party.
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This concept would allow evidence obtained by tracking Andrews’ phone to be used against him in court, even though no warrant was issued.
The FBI and other law enforcement agencies have been using Stingrays to scoop up location information on millions of people, the ACLU alleged.
“Andrews … was quite aware that he was bringing his own cell phone into the house. And he was quite capable of turning it off,” the state’s brief read. “The issue is whether Andrews can claim an objectively reasonable expectation of privacy in information which he was voluntarily broadcasting to third parties at all times.”
The procedure was declared unconstitutional by courts in two states.
FBI Director James Comey admitted to the practice in a press conference recorded in a video obtained by Motherboard.
“When we’re talking about using a device to find the location of a particular individual and where they might be using their cell phone, it’s not about intercepting their calls,” Comey said. “It may be about finding what cell tower someone’s phone is pinging off of and with proper authority, we, the feds, and our local brothers and sisters have to be able to do that to investigate all kinds of things.”
“It’s how we find killers, it’s how we find kidnappers, it’s how we find drug dealers, it’s how we find missing children, it’s how we find pedophiles,” Comey claimed. “It’s work you want us to be able to do.”
But Comey’s argument isn’t persuading the ACLU, which says innocent people are being tracked.
“In the government’s view, the only way to protect ourselves against warrantless tracking of our locations is to turn our cell phones into inert paperweights,” Wessler told Motherboard. “But this would come at a significant cost, as having a functioning cell phone has become necessary to full participation in the civic, social, and economic life of the nation.
“Because Stingrays force phones to transmit information to the government that they would not otherwise transmit to the government, gather information about countless innocent bystanders, and probe the interiors of homes and other private spaces, a warrant is required.”
What do you think? Do cell phone users give up their right to privacy when they turn them on? Share your thoughts in the section below: