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Can the Police Track Your Phone?

Can the Police Track Your Phone?

In 2022, almost everyone uses smartphones. You can send messages, emails, and photos instantly, you can scroll Facebook and Instagram, and you can read Elon Musk’s latest tweets. But you can also send private messages to your significant other, send pictures you’d rather others not see, and access your own bank records. Phones can even track your location, almost 24/7. You probably wouldn’t want a complete stranger to thumb through your phone or be able to track your phone’s location. But can the police track your phone?

In short, yes, police can track your phone, but they would probably need a search warrant signed by a judge to do this. The police in the United States can’t do whatever they want. If they want to search something of yours, the Fourth Amendment usually requires them to get a search warrant.

The Supreme Court has ruled that the Fourth Amendment also applies to cell phones, and they need a warrant signed by a judge to search your phone just like if they were searching your house. In 2018, the Supreme Court said that this applies to using data to track your phone as well.

How Are Cell Phones Tracked Anyway?

How Are Cell Phones Tracked Anyway?

First, we have to understand how cell phones work. Your phone sends and receives messages, calls, and internet data constantly. Basically, your cell phone is always searching for signals coming from cell towers, even when you aren’t using it. Your cell phone will try to ping the closest cell tower it can find, so when you drive around town, you’re going to ping different cell towers.

These cell towers record and time stamp all of your phone’s pings. By comparing the times and locations of the different pings to each other, a cell phone’s location can be roughly tracked over a period of time. This data is called “cell site location data,” and this data could be used to track a person’s movements.

Of course, there are other more obvious ways to track a phone, like attaching a physical GPS device to it. But cell site location data is always being collected, whether you know it or not.

What Is the Fourth Amendment?

In the United States, the cops aren’t allowed to do whatever they want. They are constrained by the Constitution, and in particular, the 4th Amendment. The 4th Amendment makes it unconstitutional for police officers to perform an unreasonable search or seizure. Although there are some exceptions, that usually means that the cops need a search warrant issued by a judge in order to search or seize someone or something. To legally get a search warrant, the police need something called “probable cause” – a reasonable basis for believing that wherever they are searching will have evidence of a crime.

The classic example of this is where the police want to search your house. The police can’t just barge into your house for whatever reason whenever they want. They have to get a warrant signed by a judge beforehand. Otherwise, they’re violating your constitutional rights.

When Do the Police Do a “Search” or “Seizure”?

But this begs the question – what are “searches” and “seizures”? The constitution itself doesn’t tell us directly.

The Supreme Court tackled this question in a 1967 court case called Katz v. United States. In that case, the Supreme Court said that whenever the police do something that invades someone’s “reasonable expectation of privacy”, the police are performing a search.

People have a reasonable expectation of privacy whenever they actually expect something to be private and that expectation is “reasonable”. Once again, your home is a classic example. Almost everyone would expect their home to be private, and society considers that to be a reasonable expectation – who wants random strangers rummaging through their house? So the police need a search warrant before they come barging in.

Don’t worry, this rule applies even when you don’t actually own your house. Even if you’re just renting an apartment, we’d all expect wherever we’re living to be private. So if the cops come into your apartment without a warrant, they won’t be able to use the “they don’t actually own it” excuse in court, so they’d still be violating your constitutional rights.

So if the police want to do something that invades your reasonable expectation of privacy in something, like your house, they would need to get a warrant signed by a judge first, and before that they would need probable case – some reasonable basis for thinking your households evidence of a crime.

Does the Fourth Amendment Apply to Cell Phones?

Does the Fourth Amendment Apply to Cell Phones?

We’ve talked about the Fourth Amendment, searches and seizures, and homes and apartments. But what about cell phones? Do the police have any limits on what they can do with cell phones?

Cell phones didn’t exist when the Fourth Amendment was written, so the founders certainly didn’t have this situation in mind when they wrote it. But the world has changed a lot since the founding of the United States, especially when it comes to technology. As more and more people began using cell phones in their everyday lives, the courts were having to deal with this question more and more in the first two decades of the twenty-first century.

Finally, in a 2014 case called Riley v. California, the Supreme Court answered the question: yes, the Fourth Amendment absolutely applies to cell phones. This is because cell phones are used everywhere and for almost everything. We store tons of data in our phones, including personal photos, financial information, and maybe even some text messages we wouldn’t want our boss to see. Because smartphones dominate our lives in the modern world, it makes sense that we would expect them to be private. The Supreme Court agreed, so if the police want to thumb through your phone, they have to get a warrant signed by a judge first.

But What About Tracking Phones?

The police need a warrant to start digging through cell phones. But what about tracking cell phones with data collected from cell towers?

The police can’t go through your phone without a warrant. But when the police track phones using this data, they aren’t actually physically searching through your cell phone. The data isn’t just held in your cell phone – it’s held by your phone company, since your phone pings data to and from their cell towers any time your phone is on. The police wouldn’t need your physical phone to track it – they could just get the data from your phone company.

Even though using data from cell towers to track your phone isn’t a physical search, keep in mind that anything that invades your reasonable expectation of privacy is considered a search under the Fourth Amendment, even if that invasion isn’t done physically.

You probably don’t have any expectation of privacy in your location if you are walking down a busy street – everyone can see you, including the police. But what about your location over the course of days, weeks, or months?

The Fourth Amendment applies to this situation too. In a 2018 case called Carpenter v. United States, the Supreme Court said that the Fourth Amendment also applies when the cops want to get this location data from cell phone companies. Because we use our phones all day every day in 2022, this location data can tell someone our location almost all of the time. You may not have any expectation of privacy in the fact that you’re walking down a public street, but you certainly have an expectation of privacy in where you’ve been every day for the past three months.

So if the police want this data, they can get it, but they would probably have to get a warrant signed by a judge first. Before they get that warrant, they would need probable cause. In other words, they would have to have a reasonable basis to believe that this cell phone data shows evidence of some crime.

If You Post It, They Can Get It

If You Post It, They Can Get It

However, it’s important to remember that we are only talking about things that are actually expected to be private, like the things on your phone or your location data from your phone or from cell towers.

People do not generally have any expectation of privacy in things they post on the internet. So if you post about your crime spree on Facebook, Instagram, or Twitter, the police will be able to get this information, even if they don’t have a search warrant. They aren’t invading your privacy, so getting that information wouldn’t be a search, and the 4th Amendment simply doesn’t apply.

This is true even if you have your profile settings set to private. If you have a Facebook page set to private, typically only your friends can see your posts. But even though the general public at large may not be able to see all of your posts, your friends absolutely can. And because you’ve already shared your posts with some people, they aren’t truly “private” – at least not in terms of the 4th Amendment. So the police can still gather these posts, even if they don’t have a warrant.

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