Updated: September 3, 2013 6:58AM
If you think that cellphone records revealing every place you’ve been for the past couple of months are nobody’s business but your own, think again.
By signaling nearby towers, cellphones create an electronic trail of everywhere we go, whether to a political meeting, a psychiatrist, a fertility clinic or a criminal defense lawyer. Most people would be surprised to learn that in many states, including Illinois, authorities are welcome to paw through that information without a search warrant. That’s intrusive and puts too much power in the hands of authorities. It’s a giant loophole the Illinois General Assembly needs to close.
On Tuesday, the 5th U.S. Circuit Court of Appeals, which covers Louisiana, Mississippi and Texas, ruled that cellphone tracking data are not personal information that comes with an expectation of privacy. On the contrary, the court said, they are nothing more than business records that authorities can obtain with nothing more than a court order, which is much easier to get than a search warrant.
Two other federal appellate courts also have said warrants are unnecessary. A third said judges have the option to demand warrants. New Jersey’s high court two weeks ago took the opposite position, ruling that warrants are indeed required.
A search warrant requires probable cause, meaning authorities must have a pretty good idea that someone committed a crime before demanding his or her cellphone records. A court order requires only that authorities claim there are “reasonable grounds” the records are relevant, which is a very low standard. For example, it would allow police to track everyone who passed a particular spot or traveled on a particular highway. It can encompass large numbers of people who are not suspected of committing any crime. In fact, the National Security Agency — which on Wednesday admitted when it investigates one terror suspect it can read and store the phone records of millions of Americans — has interpreted the relevancy standard in the Patriot Act to mean the agency can gather phone data on everyone.
Law enforcement agencies argue that warrantless tracking is an important high-tech tool. In a case pending before the 4th U.S. Circuit Court of Appeals in Virginia, two men were arrested in a string of Baltimore fast-food restaurant robberies after authorities reviewed seven months of their phone records. In the 5th Circuit Court case, a drug courier was arrested with 1,100 pounds of marijuana after authorities tracked his mobile phone for three days from Arizona to Texas.
But creating tools for law enforcement is not society’s only priority. We could solve more crimes if we required everyone to wear 24/7 electronically monitored ankle bracelets, but we don’t do that because we also value our privacy. That’s why the Fourth Amendment prohibits unreasonable searches and seizures.
Last spring, Sen. Daniel Biss (D-Evanston) introduced legislation that would require authorities in Illinois to get search warrants before collecting cellphone tracking data, but he pulled the bill back to give time for debate over concerns raised by law enforcement. For example, the Cook County state’s attorney’s office argued the bill was so restrictive it would ban authorities from Internet searches the general public can do. Also, any bill requiring search warrants should have some exceptions, such as emergencies or searches for missing persons. Taking time to craft a workable bill is wise, but this is an issue that must be addressed in the next legislative session.
Eventually, the U.S. Supreme Court may take up the constitutionality of cellphone tracking, but that could be years away. And the court might just leave the matter to Congress or the states. Earlier this year, Maine and Montana enacted laws requiring search warrants. There’s no reason for Illinois to delay.
Hardly a month goes by without headlines informing us of some new technology that is exposing our personal lives in ways we could never imagine. Laws protecting our privacy must keep pace with the information revolution.