American Civil Liberties Union

On Monday the Supreme Court issued a landmark decision protecting privacy in the digital age. In U.S. v. Jones, a unanimous Supreme Court held that the police and FBI violated the Fourth Amendment when they attached a GPS device to Antoine Jones’s car and tracked his movements for 28 days. While the case turned on the fact that the government physically placed a GPS device on Mr. Jones’s car, the implications are far broader. A majority of the justices acknowledged that advancing technology, like cell phone tracking, gives the government unprecedented ability to collect, store, and analyze an enormous amount of information about our private lives.

Should law enforcement agents have to obtain a warrant based on probable cause to attach a GPS tracker to a vehicle and track its movements? Several months ago we asked the Third Circuit Court of Appeals to consider our argument that they should (you can read our amicus brief here). Today, we will be in court arguing that point in the case of Harry, Mark, and Michael Katzin.

Last week the Justice Department squandered an opportunity to reassure Americans that as technology advances our civil liberties will not be left behind. The Justice Department was called before Congress to say whether it should be permitted to read people's email, text messages and other electronic communications without a probable cause warrant — that is, without a judicial determination that it has a good reason to believe a search will turn up evidence of a crime. The clear answer to this question should have been "no." After all, a warrant has been required for postal mail since at least the 1870s and for telephone conversations since the 1960s. Why shouldn't our email receive the same protection?

A recent cell phone tracking case from New York is both a win and loss for privacy. In People v. Moorer, police officers submitted an emergency or “exigent circumstances” request to a phone company asking it to ping (locate) a cell phone—but the court concluded that the circumstances were not exigent at all. The Stored Communications Act (18 USC 2702) permits the voluntary disclosure (without any kind of court order) of customer records to the government, but only if “the provider, in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires disclosure without delay of information relating to the emergency.”