Locational Privacy has emerged as a significant privacy issue as cell phones and other mobile devices generate a constant stream of data about the location of individual users, and this data can reveal a great deal of sensitive information about a person’s activities, associations, and beliefs. The Supreme Court has recently recognized that the constant tracking of an individual’s movements over time and the collection of private data from an individual’s cell phone are privacy invasions subject to the Fourth Amendment. However, many laws still authorize law enforcement agents to gather sensitive location information without probable cause or adequate judicial oversight. Some states have already taken steps to remedy that issue.
Exemplary Law: Utah’s Electronic Device Location Amendments
Utah’s Electronic Device Location Amendments bill, passed in 2014, requires that a “government entity may not obtain” location information concerning an “electronic device” without a “search warrant issued by a court based on probable cause.” The law also prohibits the use, copying, or disclosure of location information concerning non-target devices that is collected incidentally. The law also imposes a warrant requirement for access to the contents of communications sent by electronic devices, such as e-mail.
Additional Protections: CalECPA
California’s Electronic Communications Privacy Act prohibits law enforcement from obtaining “electronic communication information,” including location data, without obtaining a warrant. However, CalECPA permits law enforcement to obtain the information with a subpoena if the information is not used for law enforcement purposes. In addition to prohibiting electronic access to devices, the law explicitly prohibits law enforcement from physically accessing devices without a warrant.
- EPIC: Carpenter v. United States
- EPIC: United States. v Jones
- Marc Rotenberg, Carpenter Fails to Cabin Katz as Miller Grinds to a Halt: Digital Privacy and the Roberts Court (Dec. 4, 2018)
- Alan Butler, Supreme Court Puts Us on a Pro-Privacy Path for the Cyber Age (June 29, 2018)