Playing Hide and Seek with Big Brother: Law Enforcement’s Use of Historical and Real Time Mobile Device Data
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Cell phones and smartphones are everywhere. Today the majority of Americans own one of these mobile devices. Because these devices are only useful when within arm’s reach, they are almost always in the same location as their owner. Even when not in use, these devices are in contact with the towers which allow them to function. Via this contact, the device’s location, and as a byproduct the owner’s location, is recorded by the service provider. In addition, smartphones are equipped with GPS technology which allows for precise real-time and historical tracking of the device. Law enforcement agencies across the country are obtaining this mobile device location data from providers to aid them in a variety of investigations. This data has proven to be an invaluable resource to law enforcement. Currently federal law enforcement agencies can obtain this data without first seeking a warrant based upon probable cause. Section 2703 of the Stored Communications Act allows law enforcement to obtain this data pursuant to a court order upon establishing that there are “specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation.” This is a lesser standard than probable cause. This Comment argues that pursuant to the Fourth Amendment law enforcement should be required to obtain a warrant based upon probable cause prior to receiving this data from service providers. This data can reveal sensitive and intimate details about an individual’s activities and whereabouts otherwise unknowable. It is the position of this Comment that these details should be afforded the minimal protection of a probable cause showing before they are disclosed. To be clear, this Comment recognizes the invaluable resource of mobile data as a crime fighting tool and in no way suggests that law enforcement should be barred from using this data. Rather, law enforcement should simply have to obtain a warrant before being granted access to the data.