The next time an investigator tells you he can legally “ping” someone’s cell phone to figure out where they are going, run away fast.
We’ve written before about the illegality of getting a friendly phone company employee to help out with cell phone tower signal data that helps to locate people. As we wrote in Ping a Cell Phone, Cross a Line, the federal circuits have taken varying views of how much permission law enforcement needs before it can demand the data from phone companies.
What hasn’t changed in the two years since we wrote about this is that pinging by anyone who isn’t law enforcement, without a court order, is against the law. You still can’t pretext and pretend to be the cell phone’s owner to trick the phone company.
- The Telecommunications Act of 1996 (amending the Communication Act of 1934) Section 222 imposes a duty on carriers to keep customer information confidential
- The Telephone Records and Privacy Protection Act of 2006 specifically applies to cell phone location information
What changed this week was that another court, this time the Court of Appeals for the 11th Circuit, decided that not only does law enforcement need a warrant to ping cell phones, but as with other searches protected by the Fourth Amendment, the police need to show probable cause in order to obtain their warrant. The opinion is here.
The Supreme Court has yet to rule on pinging, but that day can’t be far off. With some one third of Americans using only a cell phone and no home telephone, this is an area of the law that will only become more closely watched and contested.
Before the Supreme Court right now is a case on whether police need a warrant to search the contents of a suspect’s cell phone. If it turns out that they do, how would the Court decide that pinging without a warrant is OK while searching the phone isn’t? Maybe by equating pinging with following someone, which is not held to be as intrusive as searching them. Then again, we’ve never had the ability to follow that many people at once, because following people is expensive and time consuming.
What is clear beyond doubt is that evidence gathered from unauthorized pinging stands to get excluded from trial, and lawyers who supervise such evidence gathering could lose their license or even be convicted of violating the statutes mentioned above.