YOU AND YOUR CELL….PART 2….Over at American Street, Mark Adams argues that we shouldn’t get too bent out of shape about the federal government tracking our location via our cell phone. After all, they can tail us with human agents perfectly legally, and this is just a technologically advanced version of the same thing.

I figure a lot of people probably feel the same way, so I think it’s worth pushing back a bit on two fronts. First front: there’s a difference here in where you can be tracked. A human agent can only follow you around in public spaces, while a cell phone signal can be tracked anywhere, even in private compounds or inside buildings. That makes it considerably more intrusive.

Second, there’s the question of when a quantitative difference becomes a qualitative difference. Human tails have an enormous practical limitation: because they’re difficult, expensive, and fallible, there can only be a very small number of them happening at any given time. Cell phone tracking, however, is automatic: it’s technically feasible to track every cell phone in the country 24/7 and keep the tracking information in a database forever if the government so desires. In theory this is just human tracking multiplied by a billion, but in practice it’s an entirely new addition to the surveillance state. Do we think this should be legal?

I don’t. I’m not making a constitutional argument here, and I suspect that, in fact, the Supreme Court would find this kind of thing acceptable. Pen registers don’t require a warrant, for example, because the Supremes decided some time ago that when you dial a number you’re voluntarily letting the phone company know what number you’re dialing. This means you have no reasonable expectation of privacy: if you’re willing to let the phone company know what numbers you’re dialing, you have to figure that law enforcement has access too.

The Supremes have also ruled once or twice on cases that take on my quantitative vs. qualitative argument, and they haven’t been kind to it. If technology makes access to public information a million times easier, thus fundamentally changing its character, that’s too bad. Public information is public information.

But that doesn’t change my opinion. I don’t think law enforcement should be allowed to build a permanent database of all of our movements, and if tracking this stuff without a warrant is legal, then eventually that’s what they’re going to do. The Department of Justice ought to be willing to tell us its policies in this area, and Congress ought to pass legislation regulating it. Your mileage may vary, but I’m with the ACLU and the EFF on this.

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