There is no Fourth Amendment violation because Skinner did not have a reasonable expectation of privacy in the data given off by his voluntarily procured pay-as-you-go cell phone. If a tool used to transport contraband gives off a signal that can be tracked for location, certainly the police can track the signal….
It follows that Skinner had no expectation of privacy in the context of this case, just as the driver of a getaway car has no expectation of privacy in the particular combination of colors of the car’s paint.
In case you missed that, Judge Rogers believes that cell phone location data is no more private than the color of your car. He also goes out of his way to note that “an innocent actor would similarly lack a reasonable expectation of privacy in the inherent external locatability of a tool that he or she bought.” So this doesn’t just apply to alleged drug smugglers; it applies to you and me as well.
Orin Kerr at The Volokh Conspiracy legal blog gets to the essential question: How did the cops obtain that location data, exactly? Did the wireless company that provided the burners periodically record the phone’s location, leaving a trail of breadcrumbs for the cops to follow? Or did the cops tell them to ping it? That would be more like being able to describe the paint on your car from a distance of several hundred miles. Is that something anyone should reasonably expect? I think not.
The question isn’t so much whether Big Foot is guilty; the question is whether the police treated his location data – and by extension, all of ours as well -- with the restraint dictated by the Fourth Amendment.
The way our system works is that if the cops want to violate my personal privacy, they need to a) have a pretty compelling reason, and b) convince a judge their reasons are compelling. If that Sixth District ruling stands, the cops will be able to follow anyone at any time for almost any reason, using the tools we bought and paid for. Does that seem right to you?
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