In August of last year, American Civil Liberies Union affiliates filed over 380 public records requests to figure out how state and local law enforcements track cell phones. The result, released in a report yesterday, according to the ACLU themselves, was “disturbing.”

Something as major as cell phone tracking should be considered and enacted with uniform, national laws and policies, but what the ACLU found was that of the over 200 police departments that responded to the ACLU’s request, there was little consensus on “the rules” for tracking a suspect’s phone.

“Until now, how law enforcement agents use cell phone tracking has been largely shrouded in secrecy,” says the ACLU report. “What little was known suggested that law enforcement agents frequently tracked cell phones without obtaining a warrant based on probable cause.”

This should be especially troubling to citizens working in the marijuana industry, especially those who are operating legally under their state’s laws. With U.S. Attorneys finding every reason to shut down dispensaries (and other businesses like the recent raid on Oaksterdam University), citizens should know their rights in respect to being tracked through their cell phones.
Unfortunately, those rights are not clearly defined.

In United States v. Jones, the Supreme Court decided that “the Government’s attachment of the GPS device to the vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a search under the Fourth Amendment.” The ACLU says that the conclusion should be “no different when the government tracks people through their cell phones”. In this case, a warrant based on probable cause should be required.

If you’d like to read the ACLU’s detailed findings on cell phone tracking, you can read their report here. Otherwise, their section headings alone serve as a fairly terrifying state of the digital union:

• The overwhelming majority of law enforcement agencies that responded engage in at least some cell phone tracking.
• The legal standards that law enforcement agencies establish to engage in cell phone tracking vary widely.
• The scope of information law enforcement agencies request also varies dramatically.
• While most law enforcement agencies report relying on cell phone companies to track their customers, some have purchased their own cell tracking technology.
• Law enforcement agents can and do get the cell phone numbers of all individuals located at a particular location at a particular time.
• Cell phone companies keep Americans’ location data for a very long time, but do not disclose this in their privacy policies.
• Providing customer information to law enforcement is big business.

The ACLU is urging state and federal lawmakers to “pass laws requiring a warrant for police to engage in location tracking.” They mention two pieces of legislation that need support:

1) The Geolocation Privacy and Surveillance Act, sponsored in the Senate by Senators Ron Wyden (D-Oregon) and Mark Kirk (R-Illinois) and in the House by Representatives Jason Chaffetz (R-Utah), Peter Welch (D-Vermont) and Jim Sensenbrenner (R-Wisconsin). You can tell Congress to support the GPS Act here.

2) A proposal to update the 1986 Electronic Communications Privacy Act (ECPA) by Senator Patrick Leahy (D-Vermont), which the government uses to secretly access people's email accounts. The bill includes a warrant requirement for real-time tracking, but not for historical location information. You can tell Congress to update the ECPA here.

In an age where nearly every app on your phone requests your permission to access your location, shouldn’t the police be required to ask someone as well?