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Like or not, your cell-phone is a personal tracking device.  Hidden within it is technology that the Federal Communications Commission has mandated so that officials can find you anywhere on the face of the earth, or at least within the United States, when you make a 911 emergency phone call.  The capability yields vast improvements in response time. However, it also enables your cell-phone service provider to monitor and record your every movement whenever your phone is on.
There are some legal limits to the use of this information by cell-phone service providers, but there are no clear limits on the use of this information by the government should it gain access to it.  In the absence of clear statutory limits, a citizen’s only protection against government use of cell-phone location information is the Fourth Amendment of the United States Constitution.  And even that appears to be limited.

Part I of this paper discusses the location tracking technology of current cellular phones, and the capability mandated for U.S. e911 service. Part II illustrates the potential private, commercial, and non-emergency police uses of location information.  Part III discusses current federal statutory limits on the use of cell-phone location information.  Part IV analyzes whether police use of cell-phone location information is subject to the protection of the Fourth Amendment.  Part V discusses two proposed congressional bills that would have provided greater protection from government use of cell-phone location information than currently exists.  And finally, Part VI concludes by summarizing the main points of this paper.

 Cellular telephones are wireless devices that allow communication via radio transmission with either landline telephones or cell-phones.  These radio transmissions carry phone conversations and other electronic data between the cell-phone and a nearby base station, or “cell-tower”.  From the cell-tower, the communications are transmitted over traditional land-based telecommunications networks.  Cell-phone networks are divided into numerous “cells,” or “cell-sites,” corresponding to a geographical area surrounding a particulate cell-tower.  As a caller travels during a phone call, passing out of one cell-site and into the next, the cell-phone system continuously reroutes radio communication to the next cell-site without interrupting the phone call. [1]  In this way, a cellular phone system is inherently “aware” of a caller’s location based on the cell-site currently in use.  This allows for identifying the callers location to within roughly 25 miles. [2]

Little notice was paid to this location tracking capability until about 1993 when the Federal Communications Commission began work to extend 911 services to cellular telephones. [3]  By dialing 911 on a traditional land-based telephone, a caller is normally placed in contact with a dispatcher for emergency response personnel, such as police, fire, and rescue.  During a 911 call, the physical location of the land-based telephone is quickly determined based on the listed address for the telephone callback number.  The dispatcher can then relay this location information to the responding emergency personnel. [4]  To provide an equivalent level of 911 service for cell-phone callers, their location must be determined as well.
In 1996, the FCC adopted wireless 911 rules that established the requirements and timing for implementing nationwide enhanced 911 (e911) for cell-phone callers.  The rules outlined two phases for implementation of cell-phone location capability.

Phase I became effective in April 1998, and required cell-phone companies to be able to provide the callback number and cell-site location of a 911 caller.  This would only locate a caller to with 25 miles.

Phase II became effective in October 2001, and required cell-phone companies to be able to provide much greater precision in determining the physical location of a cell-phone caller. This level required location tracking to within 100 meters for 67% of all 911 calls, and within 300 meters for 95% of all 911 calls. [5]

To meet the higher standards of Phase II implementation, cell-phone companies initially developed a “network-based” method of locating a caller within a cell-site.  Using this method, a cell-phone system senses the radio signals that a cell-phone broadcasts to maintain constant communication with the cell-phone network. The system then triangulates the phone’s location by measuring the travel time of radio transmission from at least three cell-towers.

As Global Positioning System (GPS) technology became less expensive and more widely available during the 1990’s, a few cell-phone companies were able to develop a much more accurate “handset-based” method of locating a cell-phone.  With the handset-based method, a GPS chipset placed within the cell-phone determines the phone’s location from several GPS satellites, and then communicates the location information back to the cell-phone system.  Additional variations combining both network-based and handset-based methods continue to be developed, promising even greater location accuracy in the future. [6]

In October 1999, the FCC revised the e911 Phase II requirements in light of these improved location tracking capabilities.  Under the revised rules, cell-phone companies using network-based methods need only comply with precision requirements outlined in the 1996 rules, but those companies using handset-based methods must be able to locate a cell-phone within 50 meters for 67% of all 911 calls, and within 150 meters for 95% of all 911 calls. [7]
However, because of these implementation procedures, and due to a limited number of waivers, not all cell-phone providers currently meet the Phase II requirements.  But most do, and all are required to meet Phase II requirements by December 31, 2005. [8]

With the mandated location tracking technology already developed for e911 compliance, cell-phone companies are beginning to leverage this capability for Location Based Services (LBS).  With LBS, a cell-phone system continuously monitors a customer’s cell-phone location information, effectively tracking the cell-phone and the customer, such that location sensitive personal and marketing-type services can be provided to the customer.  Services such as AT&T’s “mMode Find Friends”, is one such application that already allows a limited number of cell-phone users to track each other’s movements. [9]  This type of service seems particularly attractive to parents who wish to keep tabs on their teenage children, or college students looking to hook-up with each other whenever they are in close proximity.

Other potential location based services seem limited only by the imagination.  Examples might include user-initiated requests, such as locating a nearby restaurant, hotel, or coffee shop.  Other examples might include merchant-initiated services that might push ads or coupons to a cell-phone user when they pass within a certain distance of the merchant’s store. [10] Such capabilities are reminiscent of the talking GAP billboard that addressed Tom Cruise in the movie “Minority Report”.  Still other examples may include destination guides, traffic reports, and real-time navigation assistance, [11] or and other services that would be especially helpful to tourists in unfamiliar cities anywhere in the world.

In the meantime, others have already been using location information from cell-phones to place individuals at a particular time and place in the past.

In May 2003, the New York Times discovered, through a review of its cell-phone records, that one of its reporters, Jayson Blair, had falsified his location on several occasions, claiming to be reporting from out-of-state while actually calling within New York City. [12]
 
A review of cell-site records indicating suspicious travel patterns of a suspected killer helped California prosecutors get a conviction against David Westerfield in August 2002 for the murder of 7-year-old Daniel van Dam. [13]

Although these cases demonstrate effective uses of location information for tracking unethical or illegal conduct, they also indicate that employers and police may already be using cell-phone location information to determine the past movements of individuals who have done nothing wrong.  With even the current location tracking capability, it is almost certain that employers and police will be using cell-phones to track individuals in real-time as well.  The question posed is whether any safeguards exist to prevent potential abuse of this powerful new capability.

Since a cell-phone is always broadcasting a signal to maintain communication with a cell-phone network, it is currently difficult prevent location information from being gathered without turning the cell-phone off. [14]  However, turning the phone off tends to defeats one of the primary purposes for carrying a cell-phone in the first place: the receipt of incoming calls.
A few software tools are beginning to emerge that may allow a user to customize their level of privacy regarding location information.  However, most are not yet available.  For example, Lucent Technologies’ Privacy Conscious Personalization (PCP) framework enables a user to select who may and may not receive their location information.  However, the software does not block the determination of cell-phone location information from its cell-phone system. [15]  Thus, cell-phone users are left to rely on the legal protection that currently exists.

A. The Wireless Communications and Public Safety Act of 1999
 
 In 1999, Congress passed the Wireless Communications and Public Safety Act of 1999 (WCPSA) into law. [16]  The law mandates e911 service availability throughout the United States, and designates 911 as the universal emergency number for both land-based and cellular telephones.  Recognizing the fact that location information from cellular telephones might be used for purposes other than 911 emergencies, the Act also amends Section 222 of the Communications Act of 1934. [17]
 Section 222 creates a general duty on all commercial telecommunication providers, including cell-phone providers, to protect the confidentiality of “customer propriety network information”, or CPNI. [18]  Included in CPNI is information that relates to the location of a telecommunication service subscribed to by a customer, and made available to the telecommunications carrier by virtue of the carrier-customer relationship. [19]  Any CPNI received by a telecommunications carrier, including location information, can be used only in the ordinary course of business of providing telecommunication services. [20]  However, a telecommunications carrier must provide CPNI to any person designated upon the written request of a customer. [21]  This would presumably allow AT&T Wireless to legally offer the “mMode Find Friend” service as discuss above.

There are a few exceptions to the duty of confidentially imposed by Section 222.  Most notably added by the WCPSA is a general exception allowing disclosure of the location of a caller to emergency personnel, and guardians or immediate family members, in the event of a 911 phone call. [22]  Also noteworthy is an exception for the use of CPNI by telecommunications carriers to initiate, render, bill, and collect for their services. [23]

But Section 222 was further amended by the WCPSA regarding the use of location information from cell-phones, stating that a customer is deemed not to have approved disclosure of location information for purposes other than 911 emergencies unless express prior authorization is given. [24]  Unfortunately, the language of the Section 222 creates some ambiguity as to whether express authorization is required for the listed use exceptions other than 911 emergencies.  Furthermore, there seem be some confusion within the cell-phone industry as to exactly what constitutes express consumer consent.
In an article published in the July-August 2003 issues of Legal Affairs magazine, author Brendan Koerner highlighted some of the confusion regarding Section 222. [25]  In that article, he quotes David Sobel, general counsel for the Electronic Privacy Information Center (the Center), as saying that the meaning of express authorization “has never really been fleshed-out”. The Center had requested clarification from the FCC, but at that time, no clarification had yet been given. [26]  Without clarification, it was uncertain whether express consent required some written affirmative statement by a customer, or whether such consent might be given by unwrapping the shrink-wrap on a cell-phone box. [27]  Furthermore, as the article pointed out, many cell-phone providers had yet to establish any internal policies regarding the use of cell-phone location information. [28]

 The ambiguity in the language of Section 222 raises questions as to the level of privacy protection customer can expect in his or her cell-phone location information.  Furthermore, the remedies provided for violations of the statute are limited only to sanctions against the offending information users. [29]  Although this may seem adequate in many cases, particularly against employers or private individuals, this penalty will not prevent location information obtained by police from being admitted into evidence during a criminal trial.
 
B. Omnibus Crime Control and Safe Street Act of 1968

 The Omnibus Crime Control and Safe Street Act of 1968, often called “Title III”, governs the unauthorized interception and access of wire, electronic, and oral communications. [30]  In order for the government to intercept or access any of the three listed types of communications, it must first obtain a court order, generally complying with the requirements of the Fourth amendment.  Failure to obtain a court order may result in criminal or civil sanctions against individual violators.  But from a cell-phone customer’s point of view, the most significant protection provided by Title III is the statutory exclusionary rule of Section 2515. [31] Under Section 2515, the contents of an intercepted wire or oral communications shall be excluded from any trial, hearing, or proceeding.

 For location information to qualify under this exclusionary rule, it must either be an oral or wire communication.  It should be obvious that the location information discussed here is not “oral”.  Thus, the information must qualify as a “wire communication” for the rule to apply.  Furthermore, the communication must have been “intercepted” within the meaning of the statute.  And finally, only the “contents” of the communication, and evidence flowing from the contents, may be excluded from evidence.

 A “wire communication” is defined by the statute as any aural transfer made in whole or in part through the use of wire transmissions between the point of origin and the point of reception. [32]  An “aural transfer” is defined as a transfer that contains a human voice at any point between the point of origin and the point of reception. [33]  Although phone calls from cell-phones are relayed “wirelessly” by radio from the cell-phone to a nearby cell-tower, they are also relayed along traditional land-based “wire” telephone systems to other callers.  Thus, a portion of a cell-phone conversation is carried by wire, and therefore a cell-phone is a wire communication under the statute.

However, location information determined from a cell-phone cannot be viewed in the same manner as a cell-phone call.  As noted above, a cell-phone provider obtains location information from a cell-phone independent of a phone call containing a human voice.  This is true for both the network-based and handset-based methods discussed above.  Thus, since no part of location information contains human voice, a communication of location information does not qualify as an aural transfer, and it therefore is not a wire communication under the current language of the statute.

Even if the language of the stature were changed to qualify location information from a cell-phone as a wire communication, the information might still not qualify as “contents” of an “intercepted” communication entitled to exclusionary treatment.  The term “intercepted” is defined by the statute as the acquisition of the contents of any wire, electronic, or oral communication through any means, but generally not including equipment used by the customer or the telecommunications carrier in receiving or providing the communications service. [34]  Since location information is normally accessed only from a cell-phone provider’s own systems for e911 and location based services, police access to that information from a cell-phone provider would arguably not qualify as interception under the statute, and thus the exemption rule would not apply.
In the case that cell-phone location information is deemed a wire communication, and in a situation where it had been intercepted, there still remains the question of whether the location information would be “content” within the meaning of Title III.  “Content” is defined by the statute as information relating to the substance, purport, or meaning of the communication. [35]  As discussed above, a cell-phone using the handset-based method of location tracking communicates its location coordinates to the cell-phone system.  The substance of this communication is the location of the cell phone, and thus the location information would arguably qualify as “content” entitled to exclusion.

However, there is proposed here an argument that a cell-phone using the network-based tracking method might not qualify for exclusionary treatment.  A cell phone using this method does not broadcast its location, it only broadcasts a communications signal linking it with the cell-phone network.  The cell-phone network senses the phone signal and calculates its location by triangulating between three or more cell-towers.  Thus, the location information is not a part of, or derived from, the contents of any communication from the cell-phone, and as such, would not qualify for exclusion from evidence in a trial.

Regardless, it seems clear that under the current language of Title III, location information from a cell-phone is not entitled to the protection of the statutory exclusionary rule if obtained by the police without authorization.  Although the information may be entitled to limited protection if it qualifies as an “electronic communication” under this statute, the remedies for violations are limited only to sanctions. [36]  Furthermore, these sanctions may not apply in all cases.  The statute provides that a telecommunications provider may divulge to the police, contents of an electronic communication, if inadvertently obtained, which appears to pertain to the commission of a crime. [37]  Might location information gathered in the normal course of business qualify as such information?

Curiously, Title III specifically excludes communications from tracking devices, as defined by Section 3117 of the statute, from the definition of an electronic communication. [38]  Thus, if location information from a cell-phone qualifies as a tracking device communication, none of the Title III protections heretofore discussed would even apply.  Section 3117 generally covers jurisdictional issues of courts issuing warrants for the installation of tracking devices, or “beepers”, but does not set forth penalties for the violation of the statute. [39]  Furthermore, a Federal Circuit court recently held that Section 3117 does not prohibit acts in violation of the section, nor does it provide for the exclusion of evidence obtained without Section 3117 authorization. [40]  Thus, if a cell-phone is truly a tracking device, there appears to be a dearth of Federal statutory protection against its use by police.

 In the absence of strong statutory protection against the unauthorized use of cell-phone location information by police, one must fall back to the protection of the United States Constitution, and in particular, the Fourth Amendment.  The Fourth Amendment guarantees “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures” by the government. [41]  If unauthorized access or use of location information from a cell-phone by police is deemed to be a search or seizure within the meaning of the Fourth Amendment, then that search or seizure will be subject the reasonableness and warrant requirements mandated by the amendment.

 The safeguards of the Fourth Amendment apply to both Federal and State governments, including police, by virtue of the Fourteenth Amendment. [42]  Furthermore, if an individual is searched or seized in violation of the Fourth Amendment, any evidence obtained from the search or seizure, as well as any evidence flowing from it, cannot be used as evidence against the individual under the judicially developed exclusionary rule. [43]

In order for Fourth Amendment protection to apply, it must be determined whether unauthorized access or use of cell-phone location information by police constitutes a “Fourth Amendment search”.  In Katz v. United States, the U.S. Supreme Court establishes the current threshold test for qualifying a Fourth Amendment Search, that is, a search that is entitled to protection under the Fourth Amendment.  “[T]he Fourth Amendment protects people, not places.  What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.  But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.” [44]  Based on Justice Harlan’s concurrence in the same case, and more clearly stated in the recent Kyllo v. United States, the currently accepted definition of a Fourth Amendment Search is a search in which the government violates a legitimate expectation of privacy, further qualified as a subjective expectation of privacy that society has recognized as reasonable. [45]

Thus, for Fourth Amendment protection to apply in the case of unauthorized police access or use of cell-phone location information, the particular cell-phone user in each case must be able to claim a subjective expectation of privacy in his or her cell-phone location information, and that expectation of privacy must one that society recognizes as reasonable.  However, in order to apply this test properly to cell-phone location information, two distinct scenarios are must be separately addressed.  The first scenario involves the unauthorized tracking of a cell-phone when carried by an individual in public. This first scenario includes walking, or traveling in an automobile.  The second scenario involves the unauthorized tracking of a cell-phone within an individual’s home.

A. Unauthorized Tracking while in Public
 
 This scenario supposes that the police have enlisted the assistance of a cell-phone provider in the investigation of an individual suspected of wrongdoing.  The police have obtained Title III authorization to intercept calls to and from the suspect’s cell-phone, but maybe because of their interpretation of the statute, they have not requested specific authorization to access the location information enabled by e911 compliance.  While tailing the suspect in his car, the police lose visual contact and are unable to reestablish their surveillance.  After three hours, the police contact the cell-phone provider and ask for the location of the cell-phone in the hope that it will lead them back to the suspect.  The cell-phone provider, accustomed to working with these particular officers, readily supplies the street address nearest to the location of the cell-phone.  Within minutes, the police arrive at the address and call the cell-phone provider again for an updated location.  From this exchange, they locate the suspect in a public parking lot in the middle of a drug deal.  Witnessing the transaction, the police quickly intervene, arrest the suspect, and confiscate evidence of the deal for later use in a criminal trial.
 If the suspect can establish that the unauthorized use of his cell-phone location information by the police violated a legitimate expectation of privacy, he will be entitled to the protection of the Fourth Amendment, and would likely have the location information, and all evidence flowing from the information, excluded at trial.

 Under the test discussed above, the suspect must first show that he held a subjective expectation of privacy in his cell-phone location information. The suspect might show such an expectation due to the fact that location information is a mandated capability for cell-phone e911 compliance, and he was not “voluntary” disclosing his location information.  However, this argument would be weakened if the suspect was aware that his cell-phone revealed its location information whenever it was powered-on, and yet he chose to leave it on anyway.

Regardless of that awareness, the suspect might still be able to show a subjective expectation of privacy based on the cell-phone provider’s duty of confidentiality under Section 222.  But this basis is critically weakened if he had expressly authorized disclosure of his cell-phone location information for purposes other than 911, such as for location-based service.  His subjective expectation would even further undermined if he had enabled a tracking feature like “mMode Find Friends”.  In such a circumstance, he would have assumed a risk that one of his “Friends” might betray his presence to the police.
If a court accepted one of these or perhaps another basis for a subjective expectation, the second part of the test still requires that the subjective expectation of the suspect be one that society is willing to recognize as reasonable, in order for there to be a legitimate expectation of privacy.  In the illustrated scenario, where the suspect was tracked while in public, it is highly unlikely that a court would find society willing to recognize any subjective expectation as legitimate.

In United States v. Knotts, where a tracking device was used under similar circumstances, the Supreme Court found that police surveillance by means of the tracking device in that case amounted to following the suspect in public, and there was no legitimate expectation of privacy where a suspect was in public view. [46]  In a more recent 6th Circuit case where cell-site information was used in very much the same manner as the illustrated scenario, that court followed the Knotts holding, finding that there was no legitimate expectation of privacy in cell-site information because police could obtain the same information through visual surveillance of the suspect in public. [47]  The conclusion in both of these cases was that regardless of any subjective expectation of privacy, there is no legitimate expectation of privacy in location information when an individual is in public, and thus the protection of the Fourth Amendment does not apply.  Based on this rationale, the more precise location information enabled by e911 compliance would be treated no differently.

B. Unauthorized Tracking while in the Home

 This scenario supposes again that the police have enlisted the assistance of a cell-phone provider in the investigation of an individual suspected of wrongdoing.  Once again, the police have obtained Title III authorization to intercept calls to and from the suspect’s cell-phone, but not for access to the location information enabled by e911 compliance.  Like before, the police lose visual contact while tailing the subject in his car and are unable to reestablish their surveillance.  But this time, the officers wait only thirty minutes before contacting the cell-phone provider to ask for the location of the suspect’s cell-phone, in the hope that it will lead them back to the suspect.  Again, the cell-phone provider readily supplies the street address nearest to the location of the cell-phone.  The police immediately recognize the address as the home of the suspect.  Within minutes, the police arrive at the address and call the cell-phone provider again for an updated location.  Again, the location given is that of the suspect’s home, indicating to the officers that the suspect is inside.  However, the house appears to be empty.  Nonetheless, the officers decide to stakeout the house in hopes that the suspect might be home, and that they will be able to reestablish their surveillance once he emerges.  Over the next two hours, with no sign of activity within the house, the police contact the cell-phone provider two more times, and each time the cell-phone is located within the house of the suspect.  About fifteen minutes after their last update, the suspect suddenly emerges from his home and leaves in his car.  The police follow him for about ten minutes, and arrive at a public parking lot.  Within five minutes, the suspect engages in a drug deal.  Witnessing the transaction, the police quickly intervene, arrest the suspect, and confiscate evidence of the deal for later use in a criminal trial.

 Here again, if the suspect can establish that the unauthorized use of his cell-phone location information by the police violated a legitimate expectation of privacy, he will be entitled to the protection of the Fourth Amendment, and might likely have the location information, and all evidence flowing from the information, excluded at trial.

 In this scenario, the suspect might again be able to articulate the same basis for a subjective expectation of privacy as in the last scenario, namely the “involuntary” disclosure of location information, and the statutory duty of confidentiality under Section 222.  Additionally, the suspect will have a very strong argument that he possessed a subjective expectation of privacy in his cell-phone location information while the cell-phone was in his own home.

Assuming a court would accept that the suspect held a subjective expectation of privacy within his home, existing case law suggests that society is more than willing to recognize it as reasonable.  In United States v. Karo, police used a tracking device, surreptitiously attached to an item used in drug manufacturing, to reveal that the item was located within the interior of a private residence. [48]  The Supreme Court held that there is normally a legitimate expectation of privacy within the home.  “[P]rivate residences are places in which the individual normally expects privacy free from governmental intrusion not authorized by a warrant, and that expectation is plainly one that society is prepared to recognize as justifiable.” [49]
However, the Karo decision may be distinguished from the scenario illustrated here, as the court appears to have given significant weight to the fact that the location device in Karo provided police with critical information about the interior of the home, specifically that the contraband item was in the home and in the possession of the home’s occupants. [50]  In the present scenario, it is arguable that the cell-phone location information provided police with nothing more significant than knowledge that the cell phone was in the home.  The information did not reveal anything about the interior of the home, nor did it explicitly reveal the location of the suspect.  Additionally, it might be argued that the location information added nothing toward the eventual arrest of the suspect because it resulted from the visual observation of the suspect from a public vantage point. Thus, it is possible, based on the distinctions discussed, that a court might not extend the legitimate expectation of privacy normally accepted within the home with regard to location information from a cell-phone.
In the event that a court is unwilling to recognize a legitimate expectation of privacy in cell-phone location information because of the fact that it was in an individual’s home, the suspect here might still be able to legitimize his other bases for a subjective expectation of privacy.  If a court accepted one of the previously articulated augments, based either on the “involuntary” nature of the location information disclosure, or the statutory duty of confidentiality under Section 222, the expectation must still be one that is recognized as reasonable by society.

However, in Smith v. Maryland, the Supreme Court addressed unauthorized access of an electronic communication similar to cell-phone location information, and found no legitimate expectation of privacy. [51]  In Smith, police installed a pen register within a telephone company’s facility, with the company’s consent, to record the telephone numbers dialed from a private residence. The court held that, although the suspect may have had a subjective expectation of privacy in numbers dialed from his home phone, it was not an expectation which society was prepared to recognize as reasonable. [52]  The court stated that the Fourth Amendment did not prohibit the government from obtaining information revealed to a third party, namely the phone company, even when the information was revealed on the assumption that the third party would hold it in confidence. [53]  The court went on to say that there was no reasonable expectation of privacy in dialed phone numbers which must be voluntarily conveyed to a third party phone company to complete a phone call. Nor is there a reasonable expectation of privacy in recording dialed phone numbers, that are exposed to third party phone company equipment in the ordinary course of business, and that are routinely recorded for legitimate business purposes. [54]

Similarly, the Fourth Amendment may be viewed not to prohibit police from obtaining cell-phone location information revealed to a third party, namely the cell-phone provider, even in light of the statutory duty of confidentiality in Section 222.  Furthermore, if a cell-phone user has expressly consented to location information use for purposes other than 911, there may be no reasonable expectation of privacy in that information when it is volunteered for those other uses. Finally, there may be no reasonable expectation of privacy in location information that is routinely exposed to cell-phone system equipment in the ordinary course of business.  Thus, if a court views access to location information as analogous to dialed telephone numbers recorded by a pen register at a telephone company, there may be no legitimate expectation of privacy in cell-phone location information within the home either.

 It seems quite possible that under current case law, police may collect information regarding the location of an individual, revealed from a cell-phone, without violating the Fourth Amendment.  Furthermore, any statutory protection that currently exists does not provide for the suppression of location information that is obtained without authorization. Thus, if the public desires protection from police access to location information from their cell-phones, Congress must pass legislation providing such protection.

During 106th session of Congress, two such bills were introduced that promised to strengthen protection against the unauthorized use of cell-phone location information by police.  The first bill was the Electronic Rights Act for the 21st Century Act, introduced in the Senate as S. 854. [55]  The second bill was the Electronic Communications Privacy Act of 2000, introduced in the House of Representatives as H.R. 5018. [56]

S. 854 would have amended 18 U.S.C. 2703, requiring the government to obtain a court order based on a finding of probable cause that a particular cell phone has been, is, or is about to be involved in a felony offence, before a cell-phone provider is be allowed to disclose location information of a cell-phone. [57] This change would have elevated the level of suspicion required to obtain a subpoena to that required for orders to install tracking devices in Section 3117. However, S. 854 would not have added any additional penalties for unauthorized access or use of cell-phone location information.
H.R. 5018 also would have prevented cell-phone providers from disclosing location information without a subpoena. However, this bill would have required probable cause that a person has committed, is committing, or is about to commit a crime, and the that the cell-phone location information sought concerns the location of that person, or a victim of the crime. [58]  As for penalties, H.R. 5018 would have gone much further than S. 854 in protecting cell-phone location information, addressing one of the shortcomings identified in Title III. H.R. 5018 would have amended the statutory exclusionary rule of Title III to include electronic communications. [59]  Although the bill did not specifically address whether cell-phone information was included in the definition of an electronic communication, presumptively it would be covered based on the analysis discuss above.

Although either bill would have provided more protection than presently exists, at present, both bills appear to have died.

The bottom line is that anyone can be tracked with his or her cellular phone.  It does not appear that the Fourth Amendment prevents the police from tracking an individual’s cellular phone while they are in public.  The Fourth Amendment may not even prevent the police from tracking a person’s cellular phone when they are in their own home.  Furthermore, federal statutes governing the tracking of cellular phones provide few if any restriction upon the government in using that information.  If the public demands greater protection than currently exists, it must lobby congress to pass new legislation that addresses the issue.  If not, it must be willing to accept this new Orwellian reality.

1. Federal Communications Commission, Cellular Phone Operations  (November 19, 2002), at http://wireless.fcc.gov/services/cellular/operations/
2. Pulse Online, E911 Mandate Creating Commercial Demand for New Location Based Services and Technologies (September, 2000), at http://pulse.tiaonline.org/article.cfm?id=299
3. Dale N. Hatfield, A Report on Technical and Operational Issues Impacting The Provision of Wireless Enhanced 911 Services, 6 (2002), at http://gullfoss2.fcc.gov/prod/ecfs/retrieve.cgi?native_or_pdf=pdf&id_document=6513296239
4. Id. at 3-5.
5. Id. at 6
6. Id. at 10-11.
7. Id. at 7.
8. Federal Communications Commission, Enhanced 911 (March 10, 2004), at http://www.fcc.gov/911/enhanced/
9. mMode Features, at https://www.attwireless.com/ocs/featuresupport/organization/findfriends.jhtml
10. David Coursey, Cell Phone or Tracking Device? How New Tech Will Target You, ZDNET (June 13, 2001) at http://reviews-zdnet.com.com/4520-6033_16-4206063.html
11. Dr. Robert P. Minch, Privacy Issues in Location-Aware Mobile Devices, 4 (2004), at http://csdl.computer.org/comp/proceedings/hicss/2004/2056/05/205650127babs.htm
12. Brendan I. Koerner, How Do Cell Phones Reveal Your Location?, MSN Slate (May 12, 2003), at http://slate.msn.com/id/2082828
13. Id.
14. Coursey, supra
15. Cade Metz, Who’s Tracking Your Cell Phone?, PC Magazine (January 27, 2004) at http://www.pcmag.com/article2/0,4149,1464014,00.asp
16. Wireless Communications and Public Safety Act of 1999, 106 P.L. 81, 133 Stat. 1286 (1999).
17. Id.
18. 47 USCS § 222(a) (2004)
19. See id. § 222(h)(1)
20. See id. § 222(c)(1)
21. See id. § 222(c)(2)
22. See id. § 222(d)(4)
23. See id. § 222(d)(1)
24. See id. § 222(f)
25. Brendan I. Koerner, Your Cell Phone is a Homing Device, Legal Affairs (July-August 2003), at http://www.legalaffairs.org/issues/July-August-2003/feature_koerner_julaug03.html
26. Id.
27. Id.
28. Id.
29. 47 USCS § 501 (2004)
30. 18 USCS §§ 2510-2522 (2004)
31. See Id. at § 2515
32. See Id. at § 2510(1)
33. See Id. at § 2510(18)
34. See Id. at § 2510(4)
35. See Id. at § 2510(8)
36. See Id. at § 2511(4)
37. See Id. at § 2511(3)(b)(iv)
38. See Id. at§ 2510(12)(c)
39. 18 USCS § 3117
40. United States v. Gbemisola, 343 U.S. App. D.C. 237, 225 F.3d 753, 758 (D.C. Cir. 2000)
41. U.S. Const. amend. IV.
42. Wolf v. Colorado, 338 U.S. 25, 28 (1949)
43. Mapp v. Ohio, 367 U.S. 643, 655 (1961)
44. Katz v. United States, 389 U.S. 347, 351 (1967)
45. Kyllo v. United States, 533 U.S. 27, 33 (2001)
46. United States v. Knotts 460 U.S. 276, 281 (1983)
47. United States v. Forest, 2004 U.S. App. LEXIS 1139, 15 (6th Cir. 2004)
48. United States v. Karo, 468 U.S. 705, 718 (1984)
49. Id. at 714
50. Id. at 715
51. Smith v. Maryland, 442 U.S. 735, 745-746 (1979)
52. Id. at 743
53. Id. at 744
54. Id.
55. Bill Summary & Status for the 106th Congress, S.854, at http://thomas.loc.gov/cgi-bin/bdquery/D?d106:1:./temp/~bd6t1I:@@@L&summ2=m&|/bss/d106query.html|
56. Bill Summary & Status for the 106th Congress, H.R.5018, at http://thomas.loc.gov/cgi-bin/bdquery/D?d106:1:./temp/~bdl633:@@@L&summ2=m&|/bss/d106query.html|
57. S.854, supra at Sec. 102
58. H.R. 5018, supra at Sec. 7
59. Id. at Sec. 2
60. Id. see Status