The Sixth Circuit US Court of Appeals ruled yesterday that Drug Enforcement Agency (DEA) agents who tracked a suspect’s phone without a warrant did not violate the suspect’s privacy because he had “no reasonable expectation of privacy in the data emanating from his cell phone that showed his location.” The court also found because the agents had not attached a device to track the suspect it was not a “physical intrusion.” The suspect had obtained the cell phone and it just so happened to give off location data that agents could use to track him.

The case, United States v. Skinner, centers on Melvin Skinner, who was, according to the court ruling, “convicted by a jury on two counts related to drug trafficking and one count of conspiracy to commit money laundering in connection with his role as a courier in a large-scale drug-trafficking operation.” The “drug runners” used “pay-as-you-go” cell phones when communicating during “cross-country” drug shipments. Unfortunately for Skinner, in a twist that sounds like something out of “The Wire,” Skinner was seemingly unaware that the phones the drug runners were using were emitting location data. DEA agents used data from Skinner’s phone to find where the phone was located. Agents tracked the phone being used by Skinner as drugs were transported “along public thoroughfares between Arizona and Tennessee.” The phone inevitably led the agents to “locating” Skinner and his son at “a rest stop near Abilene, Texas, with a motor home filled with over 1,100 pounds of marijuana.”

Circuit Judge John M. Rogers writes, “When criminals use modern technological devices to carry out criminal acts and to reduce the possibility of detection, they can hardly complain when the police take advantage of the inherent characteristics of those very devices to catch them.” Rogers also declares, “The Constitution, however, does not protect their erroneous expectations regarding the undetectability of their modern tools.” Yes, but how did the agents figure out he had the more than one thousand pounds of marijuana?

DEA agents certainly had been investigating the drug running operation but it appears the location data was critical to arresting and ultimately convicting Skinner. What the court does with this ruling is undermine the common presumption that a warrant is necessary to track devices suspects are carrying.

Preposterously, Fourth Amendment rights go out the window in this case because, Rogers writes, “Dogs could not be used to track a fugitive if the fugitive did not know that the dog hounds had his scent. A getaway car could not be identified and followed based on the license plate number if the driver reasonably thought he had gotten away unseen. The recent nature of cell phone location technology does not change this.” This presumes location data is equal to a person’s smell or their license plate. If one drives, they are expected to have their license plate visible. One also has very little control over how they smell. However, if a person knows their phone is giving off location data, they can turn it off. To follow Rogers’ logic, this might lead to a suggestion that all devices should be required to keep GPS tracking turned on to make law enforcement’s job easier.

Additionally, referencing a previous case involving location tracking (US v. Knotts), Rogers contends, “Skinner was traveling on a public road before he stopped at a public rest stop. While the cell site information aided the police in determining Skinner’s location, that same information could have been obtained through visual surveillance.” If this is true, there was never any reason to track the GPS data being emitted and the agents could have simply engaged in visual surveillance. Since that is not what happened, it is quite fanciful to create this impression that the DEA agents actually knew what they were doing as investigators and did not need to use this data as a crutch to catch Skinner.

Rogers adds, “There is no inherent constitutional difference between trailing a defendant and tracking him via such technology.” This cannot be true. If you trail a defendant, you can visibly see that person as he or she physically moves. Even if through surveillance camera technology, an agent could see the suspect in the flesh on a monitor or screen. But, the loss of visual contact is insignificant because legal opinions craftily argue if a suspect “could have been observed by any member of the public,” it is permissible for law enforcement to use all sorts of methods that might be intrusive to catch the suspect.

It is worth noting that Judge Bernice B. Donald offered a minority opinion as part of the ruling because of this flawed logic:

While it is true that visual observation of Skinner was possible by any member of the public, the public would first have to know that it was Skinner they ought to observe. This case is thus distinguishable from both Knotts and United States v. Forest…in which officers had already identified and undertaken visual surveillance of a particular suspect. Authorities’ use of electronic surveillance in those cases was used to aid surveillance already initiated. In this case, police had not and could not establish visual contact with Skinner without utilizing electronic surveillance because they had not yet identified the target of their search. Authorities did not know the identity of their suspect, the specific make and model of the vehicle he would be driving, or the particular route by which he would be traveling. Moreover, officers could not have divined any of this information without the GPS data emitted from Skinner’s phone; therefore, they cannot be said to have merely “augmented the sensory faculties bestowed upon them at birth.”

Donald declined to join this part of the majority opinion primarily because it undermined the legitimate expectation of privacy in the GPS data emitted from any cell phone.

Both the decisions written by Donald and Rogers indicate the DEA agents did seek court orders to “obtain information on Skinner’s location from the GPS capabilities of his cell phone.” They knew they had to go to a court. However, Donald writes that they sought a court order when they should have sought a warrant for the GPS data.

Finally, the most critical aspect of the ruling is the distinction that Rogers makes between US v. Jones, where the Supreme Court ruled the secret placement of GPS tracking devices on a defendant’s car had been “trespassory” in nature and unconstitutional, and Skinner’s case. 

 Although Fourth Amendment jurisprudence includes an assessment of the defendant’s reasonable expectation of privacy, that “d[oes] not erode the principle ‘that, when the Government does engage in physical intrusion of a constitutionally protected area in order to obtain information, that intrusion may constitute a violation of the Fourth Amendment.’” No such physical intrusion occurred in Skinner’s case. Skinner himself obtained the cell phone for the purpose of communication, and that phone included the GPS technology used to track the phone’s whereabouts. The majority in Jones based its decision on the fact that the police had to “physically occup[y] private property for the purpose of obtaining information.” That did not occur in this case. Indeed, the Jones opinion explicitly distinguished Knotts on this ground—that trespass was not an issue in Knotts—and in no way purported to limit or overrule the Court’s earlier holding in Knotts. Moreover, Jones does not apply to Skinner’s case because, as Justice Sotomayor stated in her concurrence, “the majority opinion’s trespassory test” provides little guidance on “cases of electronic or other novel modes of surveillance that do not depend upon a physical invasion on property.” [emphasis added]

Thus, it is now increasingly clear the body of case law on electronic surveillance appears to grant permissions to law enforcement agents to do whatever they please without warrant via technology to find a suspect as long as they do not trespass against suspects or individuals. This makes it possible for law enforcement to do end-runs around the Supreme Court’s ruling that GPS tracking without a warrant is unconstitutional. Why even bother with devices? Everyone these days has a cell phone. Just make sure data is obtainable at any moment and there is no need for additional spy gear. It is not like the telecommunication companies won’t cooperate with data requests; in drug cases, they wouldn’t want to be seen as complicit in the War on Drugs.

As staff attorney for the American Civil Liberties Union (ACLU), Catherine Crump, said in reaction, “Contrary to the court’s alarming conclusion, Americans do not forfeit their privacy rights in their movements by choosing to carry a cellphone. We have a reasonable expectation of privacy in our movements, which can reveal a great deal about us.”

The courts now wish to maintain Americans only are entitled to privacy if they take steps to protect their privacy. The only sure way to reduce the possibility that government will violate your privacy is to find out what type of data your phone is emitting automatically. See if the data emission can be turned off. If these steps are not taken, it just makes it easier for the national security state of America to violate your Fourth Amendment right to privacy.