By: Rudman Winchell attorney Colin E. Howard
Maine’s increasing use of cell phone tracking as an investigative tool implicates important legal and constitutional questions that are evolving across the country. Every cell phone transmits several types of information that, with varying degrees of accuracy, can be used to determine its location. Because so many people have cell phones, this information can be a valuable tool to investigators and emergency response authorities. But it also raises questions about invasion of privacy, unreasonable searches, and the balance between security and personal liberty.
As part of a nationally coordinated effort to gain more information on how governmental authorities are using cell phone tracking, the Maine Civil Liberties Union recently issued a Freedom of Information request to several Maine agencies. The documents requested from agencies such as the Maine State Police, the Penobscot County Sheriff’s Offices, and the Bangor Police Department, will show how widespread such investigations are in Maine and what procedural safeguards are in place to protect against unreasonable searches.
Documents already provided from other states show that cell phone tracking is a common method of investigation that is often conducted without a warrant. With the cell phone carrier’s cooperation, authorities can track a phone’s location by determining which tower it is connected to (for a general idea of its location) or by accessing the phone’s GPS system, if it has one (for an exact location).
Obtaining this information can be very expensive. (Recently, Maine law enforcement officials warned that the price of fighting crime is going up.) Documents show that in some states, local policy is that some level of evidentiary showing must be made before using tracking a cell phone. Some states are considering legislation to regulate this practice. But generally, authorities can gain location information without even having to obtain judicial review first, which is required of other searches.
It is not clear whether cell phone tracking requires a warrant. This is an evolving area of the law, and there are no clear answers. Recently, the Supreme Court held that investigators could not attach a GPS transmitter to a car without obtaining a warrant first. It is unclear how that ruling would affect cell phone tracking. While the Supreme Court’s decision in that case was unanimous, the reasoning was split 5-4. The majority explained that its reasoning was based partly on the fact that the investigation had involved physically placing a GPS transmitter on the car. Would the answer be different with cell phones, where authorities could track a user’s exact location without ever having to even get near him or her? At least one federal court has considered that question. Its answer is frustratingly unclear, as illustrated by this Harvard Law Review article.
Maine’s highest court hasn’t ruled on this issue, and Maine authorities haven’t yet released information on how widespread these practices are here. As this area of law continues to evolve and we gain more information about it in Maine, I’ll post additional updates.