Federal court sides with ACLU, but unresolved questions abound, says LeClairRyan’s Kevin D. Pomfret
RICHMOND, VA. (9/20/11) – On TV crime dramas, police officers keep tabs on suspected criminals by sitting in unmarked cars with some doughnuts, coffee and a pair of binoculars. In today’s reality, however, law enforcement agents increasingly are tracking suspects by zeroing in on their cell phone records without a warrant. And as a federal appeals court ruling handed down Sept. 6 amply illustrates, this practice highlights unresolved questions about personal privacy in the era of location-based devices, said LeClairRyan attorney Kevin D. Pomfret, a leading advisor in the rapidly developing fields of spatial law and geospatial technology.
"As law enforcement agencies make use of location-based data from cell phones and various other commercially available devices, what policies and procedures should they follow?" asked Pomfret, a Richmond-based partner in LeClairRyan and head of the national law firm’s Spatial Law Practice Team. "This issue is of critical importance to companies that collect geolocation data. They need to know what obligations they have under the law to disclose the location of their customers to law enforcement."
In the Sept. 6 decision, the U.S. Court of Appeals for the Washington, D.C. Circuit ruled that the Department of Justice must disclose the names and docket numbers of cases in which it won a conviction or guilty plea by making use of warrantless tracking. In the four-year-old dispute, the American Civil Liberties Union had originally filed a Freedom of Information Act request seeking the policies and procedures used by the DOJ in obtaining such data. When the DOJ refused to comply with the request, the ACLU sued in federal court.
In upholding the ACLU’s demands, the three-judge panel noted that the use of location-based data by law enforcement was of substantial public interest. Greater disclosure, the court said, would enhance the debate by clarifying the scope and effectiveness of cell phone tracking as a law enforcement tool. For its part, the ACLU hailed the decision as "a significant victory in our battle to ensure that cell phones don’t become Big Brother tracking devices."
Ironically, the Department of Justice has asserted that disclosure of information about the data collected could, in and of itself, be seen as a threat to privacy, said Pomfret, who also serves as executive director of the Centre for Spatial Law and Policy. "Sensitive information could potentially be gleaned from this data," he said. "For example, those who had been convicted of a crime based upon the warrantless tracking might not want their names to be made more widely available."
Nonetheless, Pomfret said, the ruling does mean that more information about policies and procedures on warrantless tracking will be available. This is important because everyone in the process–law enforcement, businesses, attorneys–needs clarity on this issue. "Some magistrates have said law enforcement agencies must obtain a warrant before they can require cell phone companies to turn over location-based information," the attorney said. "Others have ruled that a warrant isn’t necessary, based on a different interpretations of the Electronic Communications Protection Act, which is even now being revised in Congress in an attempt to reflect some of today’s new realities."
Meanwhile, policymakers and other experts continue to discuss related privacy concerns. "For example, an important question is whether citizens have the same reasonable expectation of privacy with respect to historical location data as they do with real-time location data," Pomfret said. Another important issue is how long companies need to store the information they collect. "Law enforcement would like this information to be stored for long periods of time," Pomfret explained, "but companies are worried about more practical issues such as the cost of storage and securing the information."
As a trusted advisor, LeClairRyan provides business counsel and client representation in corporate law and litigation. In this role, the firm applies its knowledge, insight and skill to help clients achieve their business objectives while managing and minimizing their legal risks, difficulties and expenses. With offices in California, Connecticut, Massachusetts, Michigan, New Jersey, New York, Pennsylvania, Virginia and Washington, D.C., the firm has approximately 350 attorneys representing a wide variety of clients throughout the nation. For more information about LeClairRyan, visit www.leclairryan.com.
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