That alarming scoop by The Washington Post via documents provided by NSA leaker Edward Snowden included wishful thinking from an unnamed government “intelligence lawyer” interviewed in the story. This official, according to the Post, said that the data “are not covered by the Fourth Amendment,” meaning a probable-cause warrant isn’t required to get it.
In reality, however, the case law on cell-site locational tracking — while generally favorable to the government — is far from clear, with federal courts and appellate courts offering mixed rulings on whether warrants are needed.
And it’s a big deal. As of last year, there were 326.4 million wireless subscriber accounts, exceeding the U.S. population, responsible for 2.3 trillion annual minutes of calls, according to the Wireless Association.
All the while, warrantless cell-phone location tracking has become a de facto method to snoop on criminals in the wake of the Supreme Court’s decision that probable-cause warrants from judges are generally needed to affix covert GPS devices to vehicles.
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