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Ruling Celebrated as Fourth Amendment Victory Leaves Unanswered Questions
07-23-2016, 02:24 PM,
#1
Ruling Celebrated as Fourth Amendment Victory Leaves Unanswered Questions
Ruling Celebrated as Fourth Amendment Victory Leaves Unanswered Questions

<div class="field field-name-field-image field-type-image field-label-hidden"><div class="field-items"><div class="field-item even" rel="og:image rdfsConfusedeeAlso" resource="//d7.freedomworks.org.s3.amazonaws.com/styles/large/s3/field/image/district-court-ruling-fourth-amendment.jpg?itok=iDx1A7mn"><img typeof="foaf:Image" src="//d7.freedomworks.org.s3.amazonaws.com/styles/large/s3/field/image/district-court-ruling-fourth-amendment.jpg?itok=iDx1A7mn" width="480" height="321" alt="" /></div></div></div><div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even" property="content:encoded"><p>A federal judge in New York ruled for the first time on Tuesday that the use of a surveillance device to capture cell phone location information constitutes a warrantless search. In the case, <em>Lambis v. United States</em>, government officials used a stingray device to track a drug suspect. Stingrays, also known as “cell site simulators,” force cell phones in the area to transmit signals that pinpoint the user’s location through cell site location information, or CSLI data.</p>

<p>Judge William Pauley, <a href="http://www.nysd.uscourts.gov/cases/show.php?db=special&amp;id=513">ruling</a> that the use of the stingray device was a violation of the Fourth Amendment, stated that “absent a search warrant, the government may not turn a citizen’s cell phone into a tracking device.” Unfortunately, there is one major problem with his statement: in the absence of surveillance technology, a citizen’s cell phone is already a tracking device.</p>

<p>Earlier this year, a <a href="http://www.ca4.uscourts.gov/Opinions/Published/124659A.P.pdf">decision</a> from the Fourth Circuit Court of Appeals addressed the use of CSLI data. The case, <em>United States v. Graham</em>, caused a great level of concern among cell phone privacy advocates. In <em>Graham</em>, the data was collected through the cell phone service provider without the use of surveillance technology such as a stingray device. The <em>en banc</em> Fourth Circuit ruled that law enforcement does not require a warrant when asking a cell phone service provider for tracking data. Much like Tuesday’s ruling, the court’s decision in <em>Graham</em> was not based on an analysis of privacy expectation.</p>

<p>Time and time again, the court, when confronted with the complications presented by technology, has avoided questions of reasonable expectation of privacy. This includes a major Fourth Amendment decision by the United States Supreme Court.</p>

<p>In <em>United States v. Jones</em>, the Court ruled that the affixment of a GPS tracking device to a vehicle constituted an unreasonable search. Here, the <a href="https://www.oyez.org/cases/2011/10-1259">opinion</a> was based on the notion of trespass, and it was this trespass-based reasoning that allowed the court to maintain that it is unnecessary to consider whether the defendant had a reasonable expectation of privacy in the movements of his vehicle.</p>

<p>The most significant finding in this decision, however, was an assertion that a different method of data collection could have yielded a different constitutional outcome. Justice Alito, writing the concurring opinion, stated that trespass is not a factor in an analysis of the Fourth Amendment that should address privacy expectation.</p>

<p>The relevant question in the constitutional analysis, Alito contended, involves reasonable expectations that were present during a 28-day period of GPS monitoring. This would subject the search to the scrutiny of the two-pronged test <a href="https://supreme.justia.com/cases/federal/us/389/347/">established</a> in <em>Katz v. United States</em>. In other words, the constitutionality of the search should be determined upon consideration of the right to privacy and the nature of the intrusion.</p>

<p>With his concurrence in <em>United States v. Jones</em>, Justice Alito raised an important question in a case that otherwise evaded an analysis of privacy expectation. It is a question that remains unanswered as the courts continue in their consideration of any and every factor other than the state of reasonable expectation of privacy in the digital age.</p>
</div></div></div><div class="field field-name-alt-text field-type-text field-label-hidden"><div class="field-items"><div class="field-item even">The right to due process shall be preserved in the digital realm. </div></div></div><div class="field field-name-background-color field-type-te-fields-rgb field-label-hidden"><div class="field-items"><div class="field-item even"><p style="color: #126d97">The color code in this field is #126d97</p>
</div></div></div><div class="field field-name-button-text field-type-text field-label-hidden"><div class="field-items"><div class="field-item even">ENDORSE THE DIGITAL BILL OF RIGHTS</div></div></div>


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