Warrantless Cellphone Tapping Upheld By Federal Court

    In what is being hailed as a "significant victory for law enforcement," warrantless cellphone tapping was upheld by a federal appeals court, though it was hardly emphatic. The judges ruled in a 2-1 decision that warrantless tapping was "not per se unconstitutional."

    How reassuring.

    The judges came to the conclusion that because location data was "clearly a business record" it didn't apply to the Fourth Amendment. So, apparently, businesses aren't protected by Fourth Amendment rights, but corporations are permitted First Amendment protections thanks to Citizens United. Someone riddle that for me. 

    Anyway, law enforcement in the court's district will now be able to get location data on cell phones without probable cause. Mark Eckenwiler, a former Dept. of Justice attorney who worked on the case, said this law would be very helpful in establishing locations of drug deals and stash houses, ignoring the fact that a drug case would provide probable cause for a wiretap.

    The real problem is how it could be used against ordinary citizens. 

    From the New York Times:

    Likewise, location data can be vital in establishing people’s habits and preferences, including whether they worship at a church or mosque or whether they are present at a political protest, which is why, civil liberties advocates say, it should be accorded the highest privileges of privacy protection.

    “This decision is a big deal,” said Catherine Crump, a lawyer with the American Civil Liberties Union. “It’s a big deal and a big blow to Americans’ privacy rights.”

    The court almost acknowledged the failings of their ruling in its final statements.

    "But the recourse for these desires is in the market or the political process: in demanding that service providers do away with such records (or anonymize them) or in lobbying elected representatives to enact statutory protections."

    It's either that, or get rid of your cell phone.