Privacy Groups Say GPS Ruling Is Wiggle-Proof

(CN) - Privacy advocates say that recent Supreme Court precedent requires a federal judge to suppress six months of cellphone location data in a cocaine-trafficking case.

Though the FBI had obtained a warrant for to track such data with regard to nightclub owner Antoine Jones in 2004, they failed to carry it out correctly, according to an amicus brief filed by Electronic Frontier Foundation and Center for Democracy and Technology.

Washington, D.C., police and the FBI had been investigating Jones for about a year on suspected drug trafficking.

Based on surveillance of Jones' club and a wiretap on his cellphone, a federal judge gave the government a warrant to install an electronic-tracking device on the Jeep Grand Cherokee registered to Jones' wife. The warrant specified that the device should be installed in the district in 10 days.

On the 11th day, agents located the Jeep in a public Maryland parking lot and installed the Global Positioning System device.

After tracking Jones for about a month, the government indicted him on several cocaine and crack conspiracy charges. GPS data that the government submitted as evidence linked Jones to a stash house that contained $850,000 in cash, 97 kg of cocaine, and 1 kg of cocaine base.

Jones was sentenced to life in prison, but the D.C. Circuit overturned the conviction in 2010 on the basis that the GPS tracking constituted a Fourth Amendment violation.

GPS tracking, instead of human surveillance, enables 24-hour surveillance at nominal cost; allows police to track vehicles in private places and public roads; and enables the simultaneous surveillance of an unlimited number of people, according to court papers.

The Supreme Court affirmed the vacated conviction in January.

"By attaching the device to the Jeep, officers encroached on a protected area," Justice Antonin Scalia wrote for the majority.

While the high court unanimously held that the GPS tracking was a "search" under the Fourth Amendment, the justices were divided on the reasonable expectation of privacy issue.

The case is currently back in the U.S. District Court for the District of Columbia, where Jones is fighting to suppress six months of cellphone location data the government obtained without a warrant.

The Electronic Frontier Foundation and Center for Democracy and Technology say that the high court's findings require such that evidence suppression. Their brief quotes a concurring opinion in the case authored by Justice Sonia Sotomayor.

"The collection of cell site tracking information to monitor a person's location over an extended period is distinctly more invasive and revealing than mere visual surveillance," Electronic Frontier attorney Marcia Hoffman wrote. "Constant location monitoring over a prolonged period enables the government to 'generate a precise, comprehensive record of a person's public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations.'"

The groups also highlighted Sotomayor's finding that the government's invocation of the so-called "third-party doctrine" as a defense is "ill-suited to the digital age."

"Cell site tracking is not affirmatively and voluntarily conveyed to the provider," Hoffman wrote. "Rather, it is transmitted 'automatically' and 'entirely independent of the user's input, control, or knowledge."

Because the tracking data is automatic, the government cannot argue that Jones voluntarily disclosed his information to cellphone providers, the groups say.

Cellphone users still have an expectation of privacy even if they provide their data to their phone providers by turning their phones on or receiving calls, their brief states.

"If a hotel guest does not lose his reasonable expectation of privacy in his personal effects by allowing a housekeeper to enter his room to clean, and a user does not give her email provider free rein to pore over the contents of messages sent or received on the Internet, so too a cell phone user should not lose his right of locational privacy simply because he turned his cell phone on or received a phone call," Hoffman wrote.

"Allowing such a mundane act - walking around with a cell phone turned on in a pocket or purse - to defeat a reasonable expectation of privacy would allow Fourth Amendment guarantees to founder in the wake of technology."

Hoffman was joined by attorneys Hanni Fakhoury and Jon Eisenberg in the brief.

Earlier this week, the 6th Circuit upheld police tracking of a drug runner's pay-as-you-go cellphone.

"The law cannot be that a criminal is entitled to rely on the expected untrackability of his tools," Judge John Rogers wrote for the federal appeals panel in Cincinnati. "Otherwise, dogs could not be used to track a fugitive if the fugitive did not know that the dog hounds had his scent."

Circuit Judge Bernice Donald agreed that there was enough evidence to convict the drug runner, but, like the privacy advocates argued in Jones, said that he had a reasonable expectation of privacy.

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