Week 4: News Article Analysis: Cell Phone Location Data

A New York Times article from July 6, 2009, outlines the growing use of cell phone location data by law enforcement to track the movements of suspects or fugitives in real time, to identify suspects or narrow down suspect lists, to investigate the prior movements of suspected criminals well after the crime occurred, and for other investigative needs (Barnard, 2009, July 6). The location data, created by cell phones as they communicate with cell towers so calls can be routed to the phones, is often collected and stored by cell phone companies, though how much data is collected and for how long it is stored remains unclear, according to another New York Times article (Cohen, 2011, March 26). According to the 2009 New York Times article, most people have no idea their cell phones are creating a record of their movements, and law enforcement is gaining access to this data from cell carriers at an increasing rate, often without obtaining a warrant. Access to such data varies by carrier and region, and law-enforcement use has varied widely, including a sheriff in Alabama tracking his own daughter who was late returning from a date, the apprehension of fugitives, the successful release of a kidnapping victim and the successful prosecution of high-profile murder cases (Barnard, 2009, July 6).

This situation pits the value of individual privacy against law enforcement’s duty to maintain public safety. It also pits customers’ desires to control data that they may feel is private with the companies’ wishes to use that data for business purposes. The dividing lines between these competing values and interests are not currently clear, as discussed below.

According to Lessig (2006), before the rise of digital technologies individuals had several protections of their privacy, both in private and public spaces. Trespass law and the Fourth Amendment of the Constitution placed limits on the ability of both private individuals and the government to enter the “protected space” (p. 201) of an individual residence, even for the purpose of law enforcement. Architecture, such as doors, windows and locks, and norms of behavior about personal space complemented the restrictions of the law, according to Lessig. Meanwhile, he argues, even though the law did not prohibit the use of individual information gathered in public spaces by private or government entities, this use was still constrained by the relatively high cost of both monitoring behavior in public (for example through surveillance) and the difficulty of searching the record of behavior in public (for example by polling witnesses to the behavior). As such, a balance existed between protecting individual privacy and allowing law enforcement to infringe on that privacy when necessary to protect public safety.

Lessig (2006) argues that digital technology has radically altered this balance by making behavior in all spaces both more easily monitored and more searchable. Meanwhile, he states, the law has not significantly adapted to these technologies by expanding notions of privacy or clarifying what is considered private and what is not in regard to collecting, storing and using such data. The issue of cell phone companies collecting and storing location data on subscribers and law enforcement agents using this information illustrates Lessig’s argument quite well, although the U.S. Third Circuit Court of Appeals did recently uphold judges’ ability to require law enforcement to obtain a warrant to gain access to cell phone tracking information (United States Court of Appeals for the Third Circuit, 2010). Still, this court decision only applies to cases in the Third Circuit, and it does not require warrants to access location data, it merely allows judges to necessitate a warrant in cases where they believe the fourth amendment might be violated (Bankston, 2010, December 15).

Solutions to this issue could take many forms. Lessig (2006) outlines four constraints that regulate behavior: the law, social norms, the market and architecture. In the current situation, changes in the architecture of communications technology have weakened the traditional privacy protections provided by the law (trespass law and the Fourth Amendment), architecture (the difficulty of searching for evidence of behavior in public space) and the market (the high cost of monitoring behavior in public space). One solution to this issue is for lawmakers to extend “ownership” of the information obtained from a customer’s cell phone – including location data and call, text and email logs – to said customer and requiring law enforcement to obtain the owner's consent or warrants for any use of this data. Additionally, because the cell companies are collecting and storing the data, the law could allow companies to use this data for certain internal business purposes, such as marketing and other uses to be determined through consultation with industry representatives, but to require the customer’s consent for any transfer of that data to an outside party.

As previously stated, the issue here involves balancing individual privacy protection with public safety (a balance that has recently shifted away from protecting privacy) while also balancing the privacy interests of customers with the business interests of companies in regard to cell phone data. In the current situation, law enforcement’s access to this data varies widely and is open to abuse, while the customer’s rights are also varying and unclear. Meanwhile, businesses appear to have free reign to use the data while customer’s have no control over its use.

According to Lessig (2006), the most effective regulatory solutions often address multiple constraints at once. Moreover, he argues, a change in one constraint can have effects on other constraints or even lead to reactive changes in other constraints. While the suggested solution appears to only address one constraint (law), the changes in the law outlined here are also meant to try and influence the other regulatory constraints and to anticipate potential reactions to the changes in an attempt to balance the various ideals and interests of affected parties, as discussed below.

The main impetus of the proposed solution is to try and restore the previous balance between individual privacy and public safety that existed before changes in the communications architecture weakened traditional privacy protections. It does so by using the law to extend ownership of cell phone data to the customer, while allowing law enforcement to access this data through the same process that they would follow to access paper files stored in an individual’s home. Law enforcement agents might argue that the proposed law’s warrant requirement will unduly constrain their behavior, hampering their ability to promote public safety, especially in emergency situations. Consider the alternative of maintaining the status quo, however.

If law enforcement continues to use this data unevenly, inconsistently and even inappropriately (or is perceived by the public to be doing so), one could easily see a situation where public pressure could start to mount to limit or outlaw the collection of such data. This could take any number of forms, from demands for laws prohibiting data collection and storage, to a law mandating changes in cell communication architecture that made the routing of calls more anonymous, to pressure from consumers on companies to stop collecting and storing this data. By extending traditional privacy protections to this data in regard to government access, the proposed solution aims to satisfy most individuals that access to their data is subject to the protections of the Fourth Amendment. Doing so intends to influence a majority of citizens to hopefully agree that law enforcement will only use this data for legitimate public safety concerns so they will not demand more stringent controls that might lead to decreased public safety.

Simply extending ownership of the data to the customer, however, could potentially affect the market constraint on company behavior by taking away the incentive to collect and store such data. Such an outcome could obviously negatively affect public safety since, if the data doesn’t exist, law enforcement cannot access it in appropriate situations. As such, by allowing companies to use the data for legitimate, internal business purposes, the proposed solution aims to keep the market constraint on company behavior relatively stable by maintaining an incentive for companies to collect and store the data. Doing so keeps the balance between individual privacy and public safety from swinging too far in the direction of privacy by hopefully maintaining law enforcement’s ability to access this data when necessary.

References

Bankston, K. (2010, December 15). EFF location privacy victory at third circuit stands, with implications far beyond your cell phone [Web log post]. Retrieved from https://www.eff.org/deeplinks/2010/12/eff-location-privacy-victory-third-circuit-stands

Barnard, A. (2009, July 6). Growing presence in the courtroom: Cellphone data as witness. The New York Times. Retrieved from http://www.nytimes.com/

Cohen, N. (2011, March 26). It’s tracking your every move and you may not even know. The New York Times. Retrieved from http://www.nytimes.com/

Lessig, L. (2006). Code: Version 2.0. New York, NY: Basic Books.

United States Court of Appeals for the Third Circuit (2010). In the matter of the application of the United States of America for an order directing a provider of electronic communication service to disclose records to the government. Philadelphia, PA: United States Court of Appeals for the Third Circuit. Retrieved from http://www.ca3.uscourts.gov/