Cell phones are convenient devices, handily connecting us with loved ones, paying bills, accessing information—and treacherously reporting on our every move.
Worse, even after the Supreme Court weighed in, many government agencies still insist that they have the right to pull up that tracking data to see our whereabouts. It’s increasingly apparent that, if you have your phone in your pocket, you may as well have a GPS beacon strapped to your ankle. If you want anonymity from the government, leave the gadget at home.
That point was illustrated in the wake of the Capitol riot, when the authorities pulled cell phone records to see who was present.
“In the hours and days after the Capitol riot, the FBI relied in some cases on emergency orders that do not require court authorization in order to quickly secure actual communications from people who were identified at the crime scene,” The Intercept reported this week.
“Investigators have also relied on data ‘dumps’ from cellphone towers in the area to provide a map of who was there, allowing them to trace call records — but not content — from the phones.”
The data collected by people’s phones and the apps they use, often compiled by marketing firms, is amazingly detailed. An individual “outraged by the events of Jan. 6” supplied data on participants in the day’s events to The New York Times, whose writers were thoroughly creeped out by the information.
“While there were no names or phone numbers in the data, we were once again able to connect dozens of devices to their owners, tying anonymous locations back to names, home addresses, social networks and phone numbers of people in attendance,” Charlie Warzel and Stuart A. Thompson wrote.
Marketing databases have become a favorite resource for government agencies, which purchase the information as an attempted end-run around Fourth Amendment protections. The theory has been that, since the data is “voluntarily” provided to a third party there’s no privacy from the government required.
“The Trump administration has bought access to a commercial database that maps the movements of millions of cellphones in America and is using it for immigration and border enforcement,” The Wall Street Journal reported last year. “The location data is drawn from ordinary cellphone apps, including those for games, weather and e-commerce, for which the user has granted permission to log the phone’s location.”
The FBI also made use of phone location data, which led to a legal challenge that went all the way to the Supreme Court. In Carpenter v. United States (2018) the justices noted that “A majority of the Court has already recognized that individuals have a reasonable expectation of privacy in the whole of their physical movements.
Allowing government access to cell-site records … contravenes that expectation.” As a result, the court ruled in the opinion written by Chief Justice John Roberts, “the Government will generally need a warrant to access CSLI [cell-site location information].”
You’d think that would be the end of it as far as government agencies accessing the location beacon features of cell phones go, but you’d be mistaken. Cell phones track us in two ways: through CSLI generated when phones contact cell towers, and through GPS data collected by the apps installed on phones.
CSLI isn’t yet as accurate as GPS location data, but it’s keyed to specific phone numbers, while GPS data is connected to mobile advertising IDs that are, supposedly, anonymous. Since it’s not directly connected to individuals and wasn’t addressed in Carpenter, government agencies maintain they can still gather cell phone GPS data.