December 27, 2011 | By Kevin Bankston

2011 in Review: Defending Location Privacy in Courts and Congress

As the year draws to a close, EFF is looking back at the major trends influencing digital rights in 2011 and discussing where we are in the fight for a free expression, innovation, fair use, and privacy.

2010 was very eventful when it came to the issue of location privacy, with EFF bringing home some key court victories.  But 2011 was definitely the year that this issue truly hit the mainstream, with even more action around cell phone and GPS tracking in Congress, in the courts (including the Supreme Court), and in the press.  And the issue is shaping up to be even hotter in 2012.

We closed last year's location privacy wrap-up by looking forward to opposing the U.S. Department of Justice (DOJ) appeal of a federal magistrate judge's ruling that the government has to get a search warrant based on probable cause before seizing records about your cell phone's past locations from your phone company. That decision rested largely on EFF's victory last year in the Third Circuit Court of Appeals, another case where the government applied for court permission to get cell site location information ("CSLI") without probable cause.

Working in partnership with our friends at the ACLU, we filed a brief in the federal district court in Houston in January that supported the magistrate's decision--and we were rewarded at the end of this year with a victory. Just last month, the district court issued a decision summarily affirming the magistrate's ruling and holding that your CSLI is protected by the Fourth Amendment. The government has already filed notice with the 5th Circuit Court of Appeals that it will be appealing this latest pro-privacy ruling, and we at EFF look forward to opposing them there in 2012 as we did last year in the 3rd Circuit. 

Until recently, we were also expecting a similar fight in New York as well as Texas. Like Magistrate Judge Smith in Houston, District Court Judge Garaufis in Brooklyn issued a decision that denied a government request for warrantless access to CSLI in August, and the government soon filed notice with the 5th Circuit that it would be appealing the decision.  EFF immediately asked for and was given permission to oppose the government's appeal as a friend of the court, but earlier this month the DOJ decided to back down and withdrew its appeal.  Although the government's withdrawal is a victory to the extent it means that the lower court decision stands, it also robs us of another higher court ruling on this critical issue, and is only the latest unfortunate but flattering example of the DOJ backing down from a fight with EFF on a critical digital privacy issue.

So, we won't be fighting the government's appeal of the New York decision affirming your privacy rights in your cell phone location data--nor, unfortunately, are we able to appeal a 2011 government victory on this issue, in Washington D.C.  There, District Court Judge Royce Lamberth disagreed with Judges Smith and Garaufis and approved a government request for warrantless access to CSLI.  However, since the government is the only party in that proceeding, neither EFF nor anyone else is able to appeal on behalf of the unknown target whose data is being sought. So, we have a very frustrating state of affairs: when the government wins on the cell phone privacy issue, we can't appeal to a higher court, and when the government loses, it as often as not will avoid appealing so we can't get strong binding precedents on the issue.

However, in 2012, we may be getting the strongest binding precedent possible on the issue of GPS tracking of vehicles, which may also impact the cell tracking issue. That's because just last month, the U.S. Supreme Court heard oral argument in the case of U.S. v. Jones, which raises the question whether the government needs a warrant under the 4th amendment if it wants to attach a GPS device to your car and secretly track you for a prolonged period of time.  EFF strongly believes that the answer to that question is "yes" and teamed up with a broad range of advocates and technologists--including the inventor of GPS himself--to file a friend-of-the-court brief with the Supreme Court.

Across the street from the Supreme Court, on Capitol Hill, location privacy was also an incredibly hot topic in Congress this past year--not least because of the controversy over how Apple iPhones and cell phones running Google's Android operating system handle location data, which led to several Congressional hearings.  After lots of hard work (and a party or two) by EFF and many others groups and companies as part of the Digital Due Process coalition, urging lawmakers to update our electronic privacy law for the 21st century, Senators and Representatives from both parties finally began introducing bills to strengthen privacy protections for our location data, and we expect movement on at least some of those electronic privacy reform bills early in the new year.

The fact that location privacy was so in the spotlight this year is in no small part due to the Wall Street Journal, which deserves special mention for its consistently excellent "What They Know" series on digital privacy issues.  For example, just in the past few months, the Journal has done outstanding pieces on the secret "Stingray" tracking technology that the government uses for cell phone surveillance, the sharply rising number of cell tracking surveillances done by the government and the continuing controversy in the courts over those practices (with a profile of Judge Smith in Texas), and the worrisome non-warrant court orders that are often used to authorize them. And this holiday season, the Journal--along with many others--reported on the company Path Intelligence and its plan to track mall shoppers' movements using their telephones. That plan not only raised the ire of more than one Senator but may very well also violate federal privacy law, according to one former DOJ prosecutor.

And all of this was just in the past year!  Next year is going to bring more reports of new tracking technologies, new legal cases and decisions, and new movement in Congress on these critical issues. EFF will be deeply involved next year just as it was this year and in the years before, fighting for your location privacy rights in the courts and in Congress and in the court of public opinion, and you can help: please consider joining EFF or giving a gift membership this holiday season, and don't forget to sign our petition to Congress demanding a digital upgrade to our electronic privacy laws.  With your help and a little luck, 2012 will be the year that Congress and the courts make clear once and for all that if the government wants your location data, it has to come back with a warrant!

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