by Kimberley Laica
“I always feel like somebody’s watching me“
The Fourth Amendment protects the American peoples’ right, “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” It goes on to require “no Warrants shall issue, but upon probable cause, supported by oath or affirmation.” Due to certain advances in technology, this right has been called into question and courts are unsure how to respond.
Recently, courts have been struggling with how the Fourth Amendment applies to historical cell-site location information data (CSLI). CSLI is created through a technique in which a cell phone communicates its location to the nearest cellular tower every seven seconds in a process called “registration.” Should the phone move away from that tower, it will “re-register” with the next closest tower. This process allows for cellular service providers to map the movements of the cell phone (and presumably the user that is moving the cell phone) from tower to tower.
Unfortunately, the only legislation Congress has passed that covers CSLI is technologically outdated, and as a consequence, law enforcement can obtain CSLI with only a showing of “specific and articulable facts” that the CSLI is “relevant and material” to an ongoing investigation. Meaning law enforcement can track the movements of cell phone users based on a standard less than probable cause, seemingly in violation of the Fourth Amendment. The Act that allows law enforcement and the Government to do so is the Stored Communications Act, which was passed in 1986. Now, almost 30 years later, this Act is being heavily relied on in a way that could not have been foreseen based on the state of technology at the time of its creation.
In today’s society it is rare to encounter an individual that does not own a cell phone. It is virtually a vital part of the ability to function in the 21st century. As a result of this advance in technology, large portions of American citizens are now susceptible to unwarranted Government surveillance. As is evidenced by the amount of cases reaching federal appellate courts, it appears that people do not “reasonably expect that their movements will be recorded and aggregated in a manner that enables the Government to ascertain, more or less at will, their political and religious beliefs, sexual habits, and so on.” Therefore, Congress should act to prevent further invasion of American’s privacy and preserve the meaning of the Fourth Amendment.
Kimberley Laica is an Articles/Comments Editor at the FIU Law Review. Ms. Laica can be reached at klaic001@fiu.edu.