E911 location tracking, a service initially mandated by the
federal government of wireless providers to track missing persons and for other
purposes, is now being used by the wireless providers to earn a profit. Sprint
Nextel provides a "loopt" that sends an alert when a friend is near,
and Verizon’s Chaperone service allows parents to set up a "geofence"
around a defined area and receive an automatic text message if their cell phone
carrying child travels outside that area.
While these services can be useful for consumers that opt in
to tracking, they are beginning to offer some legal problems when law
enforcement attempts to mandate their use to track criminal activity. Many
attempts have been rebuffed by Federal magistrates as insufficiently specific
to allow for such tracking. Many of these rulings, typically not fit for
publication in legal reporters, are being published by judges in an effort to
create a standard. Other judges have granted requests for data without a
probable cause standard as to suspect’s location so long as the data is limited
to identifying the cellular tower servicing the suspect, which is a less
precise method of tracking an individual.
It seems surprising that this issue is as polarizing as it
is. The probable cause standard is still the standard required for requests for
surveillance. On the other hand, there are some areas of law that don’t require
probable cause at all, such as public surveillance, which law enforcement can
argue is appropriate when tracking open wireless signals.
The vast differences in rulings among federal judges suggest
that a more formal ruling as to the appropriate standard is now appropriate. Hopefully
federal appeals courts and perhaps eventually the Supreme Court can help to
settle the differences seen in the current climate.