California bill would block cellphone tracking without warrantJoel Reidenberg in The Los Angeles Times, April 11, 2012
By Michelle Maltais
Big Brother might get blinders, at least in California. A state senator recently introduced a bill to prohibit government entities from obtaining location information from cellphones without a warrant.
State Sen. Mark Leno (D-San Francisco) proposed SB 1434, an amendment to the Penal Code, to clarify the use of this ubiquitous and near-constant data stream in our pockets.
“Unfortunately, California’s privacy laws have not kept up with the electronic age, and government agencies are frequently accessing this sensitive information without adequate oversight,” he said in a prepared statement.
This follows an audit by the American Civil Liberties Union of the policies and practices of law enforcement agencies around the country. The organization found that, for the majority of those that participated, it's not uncommon for cellphones to be virtually tailed using either the phone's own GPS or cellular triangulation without obtaining a warrant or subpoena.
According to Joel R. Reidenberg, founding academic director of the Center on Law and Information Policy at New York's Fordham University, tracking someone's cellphone location might verge on violating the 1st Amendment's protection of freedom of association.
"Police shouldn't be able to gather this information on a whim, without a judge checking to make sure the tracking is justified," Hanni Fakhoury, staff attorney with the Electronic Frontier Foundation, said in a prepared statement. "Requiring a search warrant is an easy rule that balances the needs of law enforcement with the right to privacy inherent in the Constitution."
The U.S. Supreme Court has weighed in on warrantless searches using GPS technology more generally In United States vs. Jones. The justices held that law enforcement was essentially trespassing on private property by installing a device to track movements.
The cellphone is more pervasive, with its significant penetration in today's society. Reidenberg said that using cellphones for tracking "enables others to learn systematically everywhere I go every time I step out of my door." This takes activity in public that "may become something that's private" -- a pattern of behavior.
SB 1434 also aims to protect against long-term monitoring by limiting search warrants to a time frame no longer than is necessary and not exceeding 30 days.
The bill will be heard in state Senate policy committees this spring.