The efforts of the courts and their officials to bring the guilty to punishment, praiseworthy as they are, are not to be aided by the sacrifice of those great principles established by years of endeavor and suffering which have resulted in their embodiment in the fundamental law of the land. – Justice Day, Weeks v. United States, 1914.

California lawmakers are currently attempting to finalize the language of a new measure, SB 1434, which would require California law enforcement to obtain a warrant whenever it requests location information from an electronic device.  The bill follows in the wake of a recent US Supreme Court case, US v. Jones (pdf), which held that, for the most part, federal law enforcement would need to obtain a warrant before affixing a GPS tracking device to a vehicle and monitoring it.  The Jones court did not, however, rule on whether a person has a privacy right to data or information about their location.  This distinction is crucial, and California is taking an important step to close the hole for any potential abuse by law enforcement.

Hopefully the sun isn't setting on cell phone location privacy.

There are several situations in which this new bill would apply.  For example, law enforcement would need to obtain a warrant in order to request that a cell-phone provider track a phone’s physical location.  This is usually done through cell-tower locational tracking.  The bill would also apply to locational data stored in a phone’s memory, which many cellphones store, and which was the cause of a privacy outcry against Apple back in 2011.

However, in order to address concerns about exigent circumstances, the California Assembly added language that would allow for law enforcement to bypass the warrant requirement if there is insufficient time to obtain the warrant due to a potential threat of serious danger or bodily harm.

This bill will definitely be a win for privacy and Fourth Amendment fans, with the Electronic Fronteir Foundation strongly supporting it and urging the Governor to sign it.  Unfortunately, Governor Brown vetoed a similar bill in 2011, citing the courts’ job to police this kind of actions, but privacy advocates remain optimistic that the bill will be signed into law.  As Justice Alito noted in his Jones concurrence: “in circumstances involving dramatic technological change, the best solution to privacy concerns may be legislative.”

Hopefully California will lead the charge in defense of privacy rights.  With recent decisions such as the Sixth Circuit’s which held that there is no right to locational privacy, we can only hope that courts and legislatures will heed Justice Alito’s advice.

Brandon Trout

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2 Responses to Location Data, Privacy, and California

  1. Shannon Han says:

    If this law passes I am interested to see how quickly it will come into conflict with a new ruling in the U.S. v. Jones case. The Supreme Court recently sent the case back down to the lower courts after holding that the police could not attach a gps tracking device to a vehicle for extended periods of time without a warrant.

    In a recent development, the district judge has allowed the use of gps position data obtained (with a warrant) from the cell phone carriers. The judge used the “third person” reasoning that when a person gives information to a company it no longer has the same expectation of privacy.

    This means that anytime a cell phone user accesses their phone, they are providing the carrier with their location in return for cell service and coverage. This just seems to be another example where the third-party doctrine and 4th Amendment rights in general need to be re-evaluated in light of the digital age.

  2. Caitlin Angelette says:

    Something that the 4th Amendment can’t protect us from is private incursions of privacy.

    In my mind, the worrisome aspect of the situation this bill seeks to address is not whether the police can access the data but that the data is kept in the first place. The government may have the power to arrest people, but it also has oversights. Who is keeping an eye on cell phone companies? I realize there are some protections, but not many and not clearly laid out. No real improvements to privacy can be made unless the non-governmental actors are regulated more severely and the Constitution isn’t going to give us the impetus to do so.