Calling The Supreme Court

The United States Supreme Court may need to weigh in on an emerging privacy issue before too long. The question? Is GPS location information, recorded by a cell phone protected by the Fourth Amendment? A federal court in the Eastern District of New Yorkrecently issued an order answering that question with a yes, but that doesn’t seem to be unanimous among other federal courts. Under the terms of the federal Stored Communications Act, the government does not need probable cause and a warrant to obtain such records maintained by a third party provider. Under the SCA, all the government needs to show are “specific and articulable (you know a word is created by lawyers when spell check doesn’t recognize it) facts showing that there are reasonable grounds to believe that the information sought is relevant and material to an ongoing criminal investigation.” That’s an easier showing than “probable cause” required for a warrant. In the New York case, the magistrate denied the application, finding that a people have a reasonable expectation in the privacy of their cell phone communications so that the Fourth Amendment trumps the SCA. The magistrate relied in part for support on the Sixth Circuit’s ruling in the Steve Warshak case. There, the Sixth Circuit ruled that the Fourth Amendment applied to e-mail communications in the hands of a third party provider. Check out this post on the subject. It’s kind of a big deal given the ubiquity of cell phones and mobile devices. The Supreme Court could add clarity to this issue with a ruling.