By Hope Amezquita, Staff Attorney

Reports estimate that by 2015, more than 65% of Americans will have smartphones.  And, smartphones are increasingly equipped with features and apps that, while arguably make our lives easier, make it easier for private industry and the government to track us.  It’s possible to track the location of a smartphone instantaneously, and because phone companies keep records, it is possible to get historical location data of where a smartphone has been for months, even years.
Unfortunately, our privacy laws have not kept pace with technology.  Virginia law enforcement officers are increasingly using cell phones to track individuals without first obtaining a search warrant or even having a suspicion of criminal wrongdoing.  Without new state laws requiring law enforcement officers to show probable cause to get a search warrant, the government has unfettered access to the most private details of our lives.  We cannot wait for the courts to rethink traditional constitutional doctrine in light of the rapid evolution of technology.  We believe that the Virginia legislature must take action now to protect our privacy rights.
Smartphones can show where we spend our time and hold some of our most confidential communications--whether at a gay bar, an Alcoholics Anonymous meeting, an abortion clinic or a political protest---it’s all available.  Before the growth and ubiquity of this technology, it was cost prohibitive for law enforcement to surveil any one person with such oversight and in such detail.  Even the U.S. Supreme Court recognized in U.S. v. Jones that tracking technology has the ability to paint such a complete picture of a person’s life that First Amendment freedoms may be chilled. Left unchecked, the government’s ability to obtain and reveal private aspects of a person’s life is susceptible to abuse.
In an effort to curb the overreach of law enforcement practices, this past session Delegate Betsy Carr introduced legislation that would have required law enforcement officers to get a search warrant before the government could  engage in real-time tracking of  an individual’s movements through an electronic device.  Delegate Carr also introduced a companion bill that would have required law enforcement officers to get a warrant before obtaining historical location tracking data from an individual’s electronic device.  Both bills failed in the House Courts of Justice Criminal Law Subcommittee after legislators conceded to the pleas of law enforcement officers saying that they wouldn’t be able to protect public safety if they had to “jump through hoops” by getting a search warrant.
Law enforcement officers are required to show probable cause to get a criminal search warrant in most traditional settings. This requirement should apply with equal force to the investigative use of new technologies.  Because we now live in a technology driven society, we need updated laws that protect public safety and respect constitutional rights in the twenty-first century.  The Fourth Amendment is clearly implicated in smartphone location tracking and to deny the invasiveness of the practice would be absurd.  No one should have to give up their privacy as a condition of using the latest technology.  Virginians should continue to have a reasonable expectation of privacy when they use their smartphones.  It would be prudent for law enforcement agencies to come to the table to work with privacy advocates and legislators to ensure we are both free and safe.
We will be asking legislators to take another look at this issue and will work to pass laws in the 2014 session requiring law enforcement officers to get a warrant before tracking an electronic device in real time or obtaining its historical location tracking data.  Protecting privacy rights has strong public and bipartisan support as seen by the passage of the drone moratorium bill in 2013 and we are optimistic that this issue will resonate similarly with the General Assembly and a broad cross section of Virginians.
For more information what is happening on the issue in Congress: