An unlikely cohort of advocates has joined forces to argue for more privacy protections for mobile device users. Google, the American Civil Liberties Union and even Americans for Tax Reform along with other members of the Digital Due Process industry coalition want Congress to update outmoded federal laws related to privacy and electronic communications that were enacted in the Electronic Communications Privacy Act of 1986.
After years of wheel spinning, momentum is finally gaining for increased privacy protections as law enforcement officials have repeatedly relied on electronic monitoring in various investigations ranging from tracking suspected child pornographers to pin-pointing the location of a drug distribution ring's headquarters outside a dusty Texas border town.
State and Federal Investigators Make the Case for Warrantless Tracking
After the Digital Due Process coalition began lobbying for increased privacy protections, draft legislation was circulated by Rep. Dick Boucher (D-Virginia). At that point, law enforcement officials from state and federal agencies began testifying before the House Judiciary Committee against any legislative provisions that would require law enforcement officials to obtain a search warrant before monitoring the mobile devices of suspected criminals.
The element of time and the hindrance of appearing before a judge to get the warrant were frequently mentioned as reasons not to include a warrant requirement in proposed privacy laws. Law enforcement gave examples including the rescue of an abducted newborn and the takedown of a drug ring as the direct results of warrantless tracking of cell phones and GPS units. This powerful testimony will surely weigh on the minds of legislators as they consider updating the Electronic Communications Privacy Act.
Judges Draw a Line Between Warrantless Tracking and the Fourth Amendment
Mobile device users' privacy rights are not only being propped up by industry coalitions, however. In an unusual move, some state and federal judges have already weighed in on the need for a warrant where a governmental agency is monitoring the activities of a private citizen. Federal Magistrate Stephen Smith of Texas, who previously has ruled that a warrant issued on probable cause is required to track a suspect's cell phone activity, has also appeared before the committee. Smith did not take an explicit position on warrantless tracking, but advocated for clearer standards and notification of anyone who is tracked via mobile devices.
No privacy legislation has been proposed, but the fight for greater privacy protections is sure to heat up as powerful interests take sides on this constitutional issue.
