Advances in cell phone location technology could have privacy and unreasonable search and seizure implications.

The U.S. District Court for the Western District of Pennsylvania is the latest court to weigh in on an increasingly difficult privacy issue. In In re Application of the United States for an Order Directing a Provider of Electronic Communication Service to Disclose Records to the Government, the court upheld a magistrate’s decision to require that federal law enforcement officials obtain a search warrant meeting the higher standard of probable cause under Federal Rule 41 before they would be able to access a cell phone customer’s records showing where the customer was when the call took place. 2008 WL 4191511 (W.D.Pa., Sept. 10, 2008).

With the ever increasing sophistication of cell phones, these devices can sometimes identify where a customer is during a call because the cell phone periodically “registers” with the nearest cell tower. This information is subsequently recorded and retained for some time in the carrier’s customer records. This means that when law enforcement is seeking information concerning the whereabouts of a particular individual at a particular point in time, they will often request access to the records of a customer’s cell phone company. Many people are not aware that this type of broad “location information” on their daily travels with a cell phone can be stored for some period of time. This capability has been further enhanced by a federal mandate that all cell phones be able to deliver very accurate information on the location of a caller when they dial 911 in an emergency.

This rapidly evolving technology has made it difficult for courts to draw the line when it comes to the appropriate legal standard for allowing law enforcement access to this type of personal location information. In addition to access by law enforcement, privacy concerns also exist for more mundane use of this type of location information for commercial purposes by carriers themselves and other marketers.

This latest case out of the U.S. District Court for the Western District of Pennsylvania is interesting because it focuses precisely on the issue of the access to location information stored in a cell phone carrier’s various databases, an issue that has not yet been addressed directly by many courts. Earlier decisions in this topic have dealt primarily with the access by law enforcement to “live” or “real time” information on the physical whereabouts of a cell phone user. The court in this case takes a strict view of the nature of “stored” location information and finds that there is no reasonable distinction that can be made between “live tracking” and information on a customer’s whereabouts that may be stored in a carrier’s databases or records systems. In this court’s view, any activity relating to personal tracking must meet a higher standard in order to protect against the unreasonable search and seizures forbidden by the Fourth Amendment of the U.S. Constitution. The court also finds that the federal statutes in this area, namely the Stored Communications Act and the Pen Register Act, did not provide a sufficient basis for law enforcement to obtain this information by meeting a more lenient “reasonable relevance” standard. Advances in technology and uses of personal location information will continue to challenge the federal and state statutes and case law which address the appropriate legal framework for access to personal location information.