Earlier this year, the ACLU of North Carolina submitted a brief in the case of Paul Perry, who was arrested and charged with drug trafficking after police tracked his location in real time through cell phone data provided by AT&T. The location data allowed police to track him to a hotel in Raleigh, and even to figure out which part of the hotel he was in. Police did not apply for or receive a search warrant in Perry’s case.
In our brief, we argued that the Fourth Amendment’s ban on unreasonable searches and seizures means that any time police seek to use cell phone location data to locate a person, law enforcement should first obtain a warrant showing probable cause of criminal activity. That position is supported by the U.S. Court of Appeals for the Fourth Circuit, which has jurisdiction over North Carolina and ruled in April in United States v. Graham that the government should obtain a search warrant “when it obtains and inspects a cell phone user’s historical [cell-site location information] for an extended period of time.”
But earlier this week the North Carolina Court of Appeals rejected the Fourth Circuit’s logic when, in a blow to privacy rights for all North Carolinians, the court ruled that police did not violate the Fourth Amendment when they searched Perry’s cell phone location records without a warrant.
In its ruling, the court argues that Perry had no reasonable expectation of privacy under the Fourth Amendment because, as an AT&T customer, he “voluntarily” provided his location data to a third party company. The court also believed that, despite the fact that police were getting continuous updates on Perry’s whereabouts from the phone company, the location records at issue were “historical,” rather than “real-time,” records because it took 5-7 minutes for AT&T to transmit them to police. The ruling also says that the two days’ worth of location information police used to track Perry did not constitute “an extended period of time.”
These distinctions are dubious. Whether it is “historical” or in real time, cell phone tracking reveals private, invasive, and increasingly precise information about our locations and movements, including what types of political and religious activities you attend, which doctors you visit, who you spend time with, whether you go to bars or Alcoholics Anonymous, and much more. Such personal information is exactly what the Fourth Amendment was designed to protect. It is nearly impossible to participate in modern society without a cell phone, and we should not be forced to sacrifice our constitutional rights in order to use this essential technology.
In 2011, we learned that more than 50 law enforcement agencies across North Carolina have requested cell phone location data from service providers in order to track suspects, and many more have likely done so since. In 2014, for example, AT&T received 64,073 requests for cell phone location information from government entities across the country. While some agencies seek a warrant to obtain this sensitive data, many do not. In North Carolina, there are currently no laws requiring law enforcement to obtain a search warrant based on probable cause before tracking someone’s cell phone location.
Until such a law is passed, it is vital that the Court of Appeals’ decision in Perry is appealed to a higher court to ensure that law enforcement respect the Fourth Amendment and the privacy rights of all by obtaining warrants before using location data to track individuals without probable cause.
