New York State Court Holds There is No Privacy for Smart Phone Users

In the New York Law Journal a state court held that “a cell phone user has no reasonable expectation of privacy that the police will not use the phone’s Global Positioning Satellite (”GPS”) “to locate the phone.” “Given the sophistication of consumers” a user assume the risk when they purchase cellphones equipped with GPS technology that can pinpoint the location of the phone.” The court addressed the third party doctrine and found the police “exigent circumstances request” asking Sprint to “ping,” or locate, the user’s phone did not violate any constitutional rights to privacy. The user “can deactivate or disable GPS services” and secure their privacy by turning the phone off. 
The court distinguished Moorer from GPS cases where the police surreptitious attachment of a GPS device to a suspect’s vehicle to track his movements cannot be consciously turned on or off by the suspect. However, detection of the cellphone would not have been immediately apparent without “Ping” and the confiscation of the bag in which the phone was found occurred with the aid of advanced technology is one, which Justice Scalia would agree “is not in extensive public use.” The court continued its skillful evidentiary dance and considered the bag and the phone abandoned property. Therefore the user did not have a subjective expectation of privacy and did not exhibit a personal expectation to be left alone from government intrusion.

This reasoning was based on the courts conclusion that the user did not own or have any substantial connection to the home where the bag and phone was found and there were no higher state court decision addressing “Ping.” Therefore any claimed expectation of privacy by the user, is not one that society is prepared to recognize as objectively reasonable. This ruling is more in line with a private cause of action for invasion of privacy where the user is responsible for any voluntary dissemination of information to third parties. But in a criminal case the challenged conduct must meet the Katz’s two-part test. This ruling unreasonably intrudes on a users’ reasonable expectation of privacy and disregards the defendant’s contention that he planned to return for his bag. The mere absence of Moorer from the property is the sole basis for determining abandonment.

But abandoned property analysis requires proving intent to throw away property and acts that infer that intent (like leaving garbage at the side of the road). The reasoning of the court assumes that a place-based conception of privacy is a fundamental right but a person-based conception of privacy is a fighting right. This muddies the analysis in the Fourth Amendment context, for while previous conceptions of privacy were derived mainly from the concept in “life, liberty, and property,” the doctrine of trespass “a man’s home is his castle.” The Katz decision and Brandeis theory on privacy shifted the definition of privacy from place-based to person-based. The bag belonged to Moorer and included along with his cell phone his driver’s license logic presumes Moorer intended to return for the bag he asked a friend to keep. It logically follows that Moorer has a subjective expectation of privacy in the contents of his bag.