Wednesday, September 8, 2010

Third Circuit Punts On Important Geolocation Privacy Case

In deciding that a judge may - but is not required - to ask law enforcement to show probable cause for a warrant before asking a telecommunications company to turn over historical location data on its customers, the Third Circuit Court of Appeals has in effect punted on a very important geolocation privacy case. The primary issues in the case involved statutory interpretation of a complicated section of the outdated Stored Communications Act (the "Act"). The Obama administration argued that probable cause was not required under the Act to acquire historical location data - even though "historical data"could literally be seconds old. Rather, they argued, all that was required was that a much lower standard, that the information was "relevant and material to an ongoing investigation". Opponents argued that under the Act a warrant was always required.

This case has a number of important implications broader than the Stored Communications Act itself. It is part of a much larger discussion of what is a reasonable expectation of privacy in the United States from a location standpoint. The Third Circuit Court's inability to make a firm decision on the matter highlights both the ambiguity within the Act itself as well as the complexity of the issues involved. Unfortunately, its decision provides little help to lower court judges, law enforcement or the growing number of companies that are collecting this information on a regular basis.


Jeff Harrison said...

Good post. I'm a big fan of giving law enforcement the tools they need to do a tough job. However, not sure I understand why Location communication would be treated differently for the purpose of warrants than Voice communication? I guess as you pointed out - the judge punted.


Kevin said...


Thanks. Part of the problem with this case is that the court was looking at an outdated statute that did not contemplate today's technology. Also, at this point, laws and policies are technology specific - e.g. one set of law applies to the use of GPS trackign devices, another to cell phone tracking technology.

One of the questions that I think needs to be considered is who is in the best position to decide how the law should be applied to location technology - the courts, the legislature, industry or the court of public opinion (many times spurred on by media coverage).

Katleen said...

So if I understand it correctly, 'historical data' can be checked without a need for probable cause? If data only has to be seconds old to be considered historical, a distinction between current and historical seems to be futile. From that perspective, allowing access to location data without probable cause allows for very broad privacy intrusions. It indeed invokes the question what can be reasonably expected from privacy and if we should not start paying more attention to the importance of location in the privacy debate. After all, if people can track where you go, they know almost everything about you...Is this case unique or do you think other comparable cases will turn up?