Guest Column: Unanswered questions on cellphones, privacy

Philadelphia Inquirer

The Petraeus affair has helped Americans understand the sweeping power federal authorities have to snoop around in email. Another way Americans may unknowingly expose their personal affairs to law-enforcement eyes is through their cellphones.

In 2011, cellphone providers reported handing 1.3 million requests from law enforcement for data about customers, according to the New York Times.

You might think that police would need a warrant to get at those records.

Not so, at least as far as the U.S. Constitution is concerned. Federal courts have yet to stop warrantless cellphone record searches, though cases are pending. The government says you have no expectation of privacy for cellphone calling records, since you’ve already “shared” them with a third party, the cellphone company.

Now, the good news: It’s likely harder for state and local police in this region to do that kind of warrantless fishing.

David Rudovsky, a senior fellow at Penn Law School who specializes in privacy issues, says “so far the Pennsylvania Supreme Court has provided some greater measure of protection for privacy” in this area.

However, Pennsylvania courts have ruled that if someone else is paying for your cellphone, you have no control over who looks at your calling records, so police are free to make use of them.

The New Jersey Supreme Court is considering a case where police obtained records of a cellphone’s physical location without a warrant. ACLU of New Jersey attorney Alexander Shalom is optimistic about a favorable ruling.

“Encouraging precedents are there,” he says of the pending case, State v. Earls. “New Jersey, for the better part of three decades, has recognized that the state constitution provides more protection, especially in the area of search and seizure, than does the U.S. Constitution.”

Rudovsky notes that Pennsylvania courts have not yet ruled on police use of cell-phone location tracking records without a warrant. But, he says, courts are not the only way to protect the right to privacy.

“Regardless of what courts rule,” Rudovsky says, “something legislatures have to be thinking about is whether they can pass statutes that give better protection.”

Hear, hear to that.

The following editorial appeared in the Philadelphia Inquirer on Monday, Dec. 3.