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The Price of Cell Phone Convenience? Your Privacy and Liberty.

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By Jonathan R. Tung, Esq. on June 06, 2016 6:52 AM

The recent ruling by the Fourth Circuit should raise the neck-hairs of everyone keeping track of mobile device-privacy issues and government overreach into our lives and pockets. In the case of USA v. Graham, the Fourth Circuit, sitting en banc, found that law enforcement does not require a search warrant when asking a cellphone carrier for tracking information because the consumer under scrutiny had no reasonable expectation of privacy.

It's a result that's a consequence of flawless application of logic -- and it should scare the bejeezus out of you.

"CSLI" -- The Most Important Abbreviation You've Never Heard Of

CSLI refers to "cell site location information" -- the provider generated information that gets created every time your phone communicates with the nearest cell-phone tower. This information lets the carrier know where your phone is and is, indeed, crucial to your device's proper operation. However, at issue and debate within the courts is whether or not your phone's contact with the cell tower is a "voluntary" sharing of your location information for the purposes of the "third party doctrine" which allows government agencies to access such "voluntarily" shared information given to a third-party like a bank or phone company.

Supreme Court Precedent

This "third party doctrine" was established in the twin cases of US v. Miller and Smith v. Maryland, both from the late 70s. Those cases stood for the modern rule that government investigators do not need to procure a search warrant to obtain bank records (or phone records) of phone numbers that call into those companies.

The defendants, two men convicted of armed robbery, had urged the court to find such a warrantless gathering of information to be unconstitutional. Indeed, a Fourth Circuit panel initially came to that conclusion. But, on rehearing the case en banc, the circuit changed course.

"In sum, the Defendants' preferred holding lacks support from all relevant authority and would place us in conflict with the Supreme Court and every other federal appellate court to consider the question," the Fourth Circuit wrote.

Strained Application

Andrew Crocker, of the Electronic Frontier Foundation, said that the circuit applied a "strained" definition of what it means to "voluntarily" give information to parties. And indeed it does raise material questions relevant to personal liberties and desire to stay somewhat private.

Does a cell phone user knowingly and voluntarily consent to have his records and location known by police absent probable cause every time he turns on his cell-phone? Probably not. In fact, our guess is that the question doesn't even occur to the phone user. At least quite a few would be at least hesitant to enter into that deal.

But are personal liberties really worth foregoing the conveniences of cell service? Today, a cell-phone is all but necessary to live in a modern society. Even if a number of liberties are eroded, it is probably seen as a small price to pay given the absolute reliance we've placed on these machines. Most are oblivious to the rights we've lost.

And that's the scariest thing of all.

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