Cell Phone Data Privacy in the Wake of Jones and Skinner

          As smartphones become more common, both the law enforcement uses of cell phone data and the privacy concerns related to these uses are on the rise. One aspect of smartphones in particular that has widespread privacy implications is theability to use GPS tracking capability to monitor a person’s every move, simply by tracking the location of their cell phone. A report published by Scientific Reports studied anonymous mobile data for about 1.5 million people. The findings are concerning for privacy advocates – the researchers found that “if they got accurate hourly updates on a person's whereabouts, tracked by their mobile carrier's cell towers, four ‘data points’ were all they needed to figure out the person's identity 95% of the time.” Conversely, given access to mobile data by an individual’s cell phone service provider, law enforcement can track that person’s every move in real time.

          It is unclear whether there is a consensus in modern courts regarding what degree of privacy cell phone users enjoy with regards to their location data. In United States v. Skinner, the Sixth Circuit Court of Appeals held that there is no reasonable expectation of privacy in location data broadcast by a cell phone, thus, the Fourth Amendment does not require the police to obtain a warrant before monitoring a person’s real-time location through cell phone location data. However, privacy advocates argue that this does not mesh with United States v. Jones, decided just seven months earlier, where the Supreme Court held that warrantless long-term GPS monitoring violates the Fourth Amendment.

          It is important to note, for privacy law purposes, that cell phone users knowingly and willingly transmit GPS signals to their cell phone provider in order to use many of the location-based services provided by smartphone apps (Urban Spoon, Google Maps, Foursquare, etc.). Under the Third Party Doctrine, since users have willingly surrendered this information to their cell phone service provider and/or app providers, they have abandoned any claim to privacy that they may have had. According to the Electronic Frontier Foundation (EFF), this is the rationale that the government uses to justify use of location data – “the government claims that cell phone users give up their privacy rights because they have voluntarily disclosed their physical location to the cell phone providers every time a phone connects to the provider's cell tower.” The consequences of such access by law enforcement can be extremely far-reaching; the EFF points out that “location data is extraordinarily sensitive. It can reveal where you worship, where your family and friends live, what sort of doctors you visit, and what meetings and activities you attend.”

          Is it fair to “punish” smartphone users by invading their privacy, especially given the necessity of smartphones in today’s world? Is this even a violation of their privacy at all, given the third party doctrine? What are your expectations of privacy when it comes to cell phone GPS data? Without more clarity from the courts, it is difficult to say what role cell phone location data will play in the criminal law context, but with the growing use of smartphone data to track, apprehend, and charge individuals suspected of crimes, it will surely need to be tackled by the courts head on, sooner rather than later.