Should The Police Be Allowed To Track Your GPS On Your Phone Without Warrant?

Your cell phone is like a personal GPS system. It tracks your every move, and the records are indisputable, a new reality of our lives that may also be eroding our privacy.

At least, that’s what the American Civil Liberties Union believes, and the organization is raising concerns about how local law enforcement agencies get access to that information.

In August of 2011 the ACLU filed requests for public records from more than 380 state and local law enforcement agencies, including Nashua. The New Hampshire Civil Liberties Union asked the police department for a list of policies and procedures on the books when it come to cell phones GPS tracking records (see Nashua’s responses in attached PDF document).

According to a March 31 post on the ACLU website, cell phone technology has provided a “powerful” location tracking tool for local law enforcement and the federal government, one that may encroach upon our personal privacy, says the ACLU.

“Ater an unprecedented records request by ACLU affiliates around the country, we know that this method is widespread and often used without adequate regard for constitutional protections, judicial oversight, or accountability,” the ACLU write.

Of the 200+ police departments that responded, all said that they have tracked cell phone locations, but only a small number of departments said they consistently obtain a warrant demonstrating probable cause to do so.

In response to the August request to Nashua Police by the NHCLU, City of Nashua attorney Stephen Bennett said that our police department has “no specific policies, procedures or practices regarding how cell phone location records are obtained.” He also said that in those cases where such records were obtained, Nashua has done so with the help of “other law enforcement agencies, including federal  marshals, FBI,  and thc  DEA,” and results “are then transmitted orally to Nashua by the other agency.”

Bennett also cited compliance with federal and state Constitutional requirements and statutes governing the use of warrants, which is at the heart of the ACLU’s complaint.

The ACLU says the government’s cell phone tracking policies should be uniformly clear and protective of privacy, and always involve a warrant and probable cause.

“Instead [they] are in a state of chaos, with agencies in different towns following different rules — or in some cases, having no rules at all. It is time for Americans to take back their privacy,” the ACLU writes. “Cell phones register their location with the network several times a minute and this function cannot be turned off while the phone is getting a wireless signal. The technology’s threat to personal privacy is breathtaking.”

Such records, tracked over time, would make it possible to know if someone is regularly entering a church, a bar, a gymnasium, a doctor’s office or a motel, says the ACLU.

As a result, the ACLU is seeking support for the Geolocation Privacy and Surveillance Act, H.R. 2168 and S.1212, which require law enforcement to get a warrant based on probable cause before accessing location information. The bills also regulate the use of this information by business.

We reached out to U.S. Senators Kelly Ayotte, R-NH, and Jeanne Shaheen, D-NH, and our congressmen, Charles Bass and Frank Guinta.

So far we’ve received responses from Bass and Ayotte:

Bass said, “With the rapid advancement of mobile technology, it’s vital that individuals’ Constitutional rights are safeguarded and upheld.  As a member of the Subcommittee on Communications and Technology, I’ve heard extensive testimony about privacy issues at numerous Subcommittee hearings and I am taking a careful look at this legislation and other bills to ensure we protect the rights of technology users.”

A spokesman for Ayotte said: “Senator Ayotte has not yet reviewed this legislation, which has not been debated by the full Senate. She believes there must be a careful balance between protecting individual privacy and ensuring that law enforcement has the tools it needs to protect the public.”