Published by LawTechie - September 7, 2012 - LawTechie

Privacy LawThe Obama administration has cited a 1976 case for the proposition that mobile phone location (GPS tracking) data is not Constitutionally protected. According to Wired:

“A customer’s Fourth Amendment rights are not violated when the phone company reveals to the government its own records that were never in the possession of the customer,” the administration said in a court filing Tuesday (.pdf). ”When a cell phone user transmits a signal to a cell tower for his call to be connected, he thereby assumes the risk that the cell phone provider will create its own internal record of which of the company’s towers handles the call. Thus, it makes no difference if some users have never thought about how their cell phones work; a cell phone user can have no expectation of privacy in cell-site information.”

The government made this argument after the recent Supreme Court ruling in US v. Jones declared it unconstitutional to attach GPS tracking devices to crime suspect vehicles without probable cause or warrant.

This new argument relies on the ruling in United States v. Miller, 425 U.S. 435 (1976), wherein the Supreme Court held that a defendant has no reasonable expectation of privacy in his bank records because such records are created by and therefore owned by the bank. By analogy, argues the government, cellphone location information is created by and, if stored, is stored by the cell phone company which thereby owns the record to such location.

The Supreme Court’s ruling on this issue could have profound implications on telephone user privacy.

LawTechie is a blog focusing on trends in tech and digital media. Areas covered include intellectual property, cyberlaw, venture capital, transactions and litigation as they relate to the emerging sectors. The blog is edited by the firm's partner Tim Bukher with contributions from the firm's experts in their respective areas of law.

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