Can the Government Legally Track Your Cell Phone?
Stingray Cell Phone Tracking Technology
The Los Angeles Police Department (LAPD) is now tracking individuals’ cell phone locations with the aid of a counter-terrorism grant from the United States government. Many First Amendment advocates are concerned about this technology, called Stingray, which tracks the location and time and of cell phones and their registered owners who happen to pass by such a tracking device.
LAPD Aren’t the Only Ones Using Stingrays
Cellphone-location tracking devices have been used in recent years by the FBI, various law enforcement agencies, as well as the U.S. military. The L.A. Weekly obtained documents via the Freedom of Information Act that revealed state cops in Florida, Texas and Arizona are using Stingrays (“LAPD Spy Device Taps Your Cellphone,” L.A. Weekly, September 2012).
In Minnesota, a spokesperson for the Bureau of Criminal Apprehension says law enforcement in this state do not need search warrants to use such technology because it “does not intercept communication, so no wiretap laws would apply” (“Stingray Phone Tracker Fuels Constitutional Clash,” Wall Street Journal, September 2011).
The FBI continues to claim its use of such a device, which is portable by the way, is legal. Nevertheless, the Electronic Privacy Information Center (EPIC) argues that cell phone location records reveal private information that should be protected even if they are held by third-party cell phone companies (“Federal Court to Hear Arguments in Cell Phone Tracking Case,” epic.org, August 2012).
First Amendment Advocates Don’t Have a Leg to Stand On
While I am the first one to squawk whenever First Amendment rights are impugned, I don’t think First Amendment advocates have a constitutional leg to stand on. The location and travel of persons with cell phones, as recorded by Stingray or similar devices, all take place in public plain view. In short, innocent people who happen to be in the vicinity of the device, and are tracked because of that, have the option of turning off their cell phones or removing the battery, and therefore traveling wherever they please undetected by Stingrays.
Keep in mind, the First Amendment absolutely guarantees the right to travel within public venues. However, the First Amendment does not guarantee the right to keep your cell phone on wherever you like.
Colorado criminal defense attorney Shaun Kaufman admires and uses constitutional law doctrines in his daily litigation practice. He was the recipient of the American Jurisprudence Award for Excellence in the Study of Constitutional Law at the University of Denver, College of Law, 1983.
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