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Wednesday, February 17, 2010

No warrant? No problem.

CNET has a disturbing story up about warrantless tracking of cell phone data. The feds want to be able to retrieve any third party data about you without a warrant and argue that you have no expectation of privacy on data gathered between you and your cell carrier.

the Obama administration has argued that warrantless tracking is permitted because Americans enjoy no "reasonable expectation of privacy" in their--or at least their cell phones'--whereabouts. U.S. Department of Justice lawyers say that "a customer's Fourth Amendment rights are not violated when the phone company reveals to the government its own records" that show where a mobile device placed and received calls.

I understand the need to get access to data like this in criminal investigations, but that is why we have a warrant process. It’s a reasonable check on the process of mining into people’s private affairs. But you only need a warrant to get information that is not volunteered.

There is bigger issue here is not being addressed. Why is the phone company eager to hand over this data? It varies from company to company, but I’d expect some sort of privacy agreement to be in the contract between the user and the service provider. I want my phone company (or anyone I do business with) to have a clause in the agreement that says “We won’t hand over any data collected without a warrant.” If you don’t have something like that, then you absolutely have no expectation of privacy.

This case may not be just about your cell phone location, but about any sort of information held by anyone you do business with.

A) The government doesn’t have any inherent right to this information

B) Unless you have something in your agreement, you don’t have any right to prevent them from seeing it.

<HT: GorTechie @ Gormogons>

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