OFF THE WIRE
An interstate drug trafficker hauling a motorhome filled with marijuana isn’t the most sympathetic defendant. But a federal court’s declaration that Melvin Skinner pretty much should’ve known his pre-paid cellphone could be tracked via GPS — and therefore cops didn’t require a warrant to track him — has repercussions that privacy advocates say deserve your attention.
Even if you don’t drive around in recreational vehicles loaded down more than a thousand pounds of pot.
On Tuesday, the 6th U.S. Circuit Court of Appeals ruled that law enforcement officials don’t need a warrant to track suspects via cellphones. Attorneys argued to overturn Skinner’s many convictions, citing that the GPS location information that led to the defendant’s arrest was obtained in violation of the Fourth Amendment, which guards against unreasonable searches and seizures. This didn’t wash with the majority of judges over the case, who voted in a 2-1 ruling.
“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,” wrote Judge John Rogers in the majority opinion that will affect future cases in a huge chunk of the country.
Skinner was arrested in 2006, with 1,100 pounds of marijuana in the motorhome he was driving, after law enforcement officials tracked him via one of the pre-paid phones the drug ring purchased using false identities. Such “burner” phones are regularly discarded by criminals to avoid tracking. In this case however, officials obtained Skinner’s number from another member of the ring, and then a court order that required the cellphone company to disclose “cell site information, GPS real-time location, and ‘ping’ data” for Skinner’s phone.
Accessing this information, law enforced trailed Skinner to a Texas rest area where a drug-sniffing dog turned up 1,100 pounds of pot in the motorhome he was driving. Skinner was arrested, of course, and was convicted of conspiracy to distribute and possession with intent to distribute over 1,000 kilograms of marijuana, conspiracy to commit money laundering, aiding and abetting the attempt to distribute in excess of 100 kilograms of marijuana — charges his lawyers say were derived by a warrantless search in violation of the Fourth Amendment.
Here's the crux, as it may relate to everyone else: "There is no Fourth Amendment violation because Skinner did not have a reasonable expectation of privacy in the data given off by his voluntarily procured pay-as-you-go cellphone." That's what Judge Rogers stated in the in the majority opinion, where he cited the Stored Communications Act. The law hamstrings the Fourth Amendment in relation to wire and electronic communications — noting that the use of third-party providers diminishes a person's expectation of privacy.
Rogers maintains his statement within the context of committing a crime. As the judge writes, "If a tool used to transport contraband gives off a signal that can be tracked for location, certainly the police can track the signal." Failing that, "technology would help criminals but not the police."
This ruling is creating cognitive dissonance among privacy advocates who note that in January, all nine members of the Supreme Court held that warrantless GPS tracking is unconstitutional. In that case, police tracked suspected drug dealer Antoine Jones for 28 days — without a warrant — via a GPS device they’d attached to his car.
"That the officers were able to use less expensive and more efficient means to track the vehicles is only to their credit," he wrote.
Given the ubiquity of cellphones — most of which come with some form of GPS automatically enabled — this latest ruling rings a warning bell among privacy advocates.
"Location data is extraordinarily sensitive. It can reveal where you worship, where your family and friends live, what sort of doctors you visit, and what meetings and activities you attend," Electronic Frontier Foundation senior staff attorney Marcia Hofmann wrote in a blog post prior to the court's decision.
"Whether this information is collected by a GPS device or a mobile phone company, the government should only be able to get it with a warrant based on probable cause that's approved by a judge."
"The 6th Circuit’s cell-tracking opinion is really disappointing. It’s the first appeals court decision about cell tracking after the Supreme Court’s decision in United States v. Jones and I’d hoped for a better result," Catherine Crump, staff attorney for the ACLU Speech, Privacy and Technology Project, told NBC News.
Crump led the ACLU’s blockbuster analysis of collection of cellphone location data by local police. The results, released earlier this year, revealed that many of the 200 law enforcement agencies that responded to the ACLU’s public records request, track cellphones without a warrant.
In this latest, ruling, Crump said, “the court seems to think that if criminals use cellphones, they can hardly complain if they are tracked through these phones. But the court’s reasoning deprives all of us of constitutional protection against warrantless cellphone tracking. And besides, even suspected bad guys have constitutional rights.”
-- Bob Sullivan of Red Tape Chronicles contributed to this report.
Helen A.S. Popkin goes blah blah blah about privacy, then asks you to join her on Twitter and/or Facebook. Also, Google+. Because that's how she rolls.
