By Benjamin Holt, Legal Fellow, ACLU-NC Legal Foundation
Yesterday, the North Carolina Court of Appeals heard arguments in Perry v. State of North Carolina, a case that asks whether the government should be allowed to track your location in real time using your cell phone without first obtaining a warrant.
As we’ve discussed previously, real time cell phone tracking reveals private, invasive, and increasingly precise information about your location and movements. Whenever your phone is turned on—even if you enable its location privacy settings—your cell phone service provider is able to determine with increasing accuracy where your cell phone is located.
Paul Perry was arrested and charged with drug trafficking after police tracked his location in real time through cell phone data provided by AT&T. The location data allowed police to track him to a hotel in Raleigh, and even to figure out which part of the hotel he was in. Police did not apply for or receive a search warrant in Perry’s case. On appeal, Perry is asking the Court to give him a new trial in which the State cannot use all the evidence it obtained by violating his Fourth Amendment rights. The ACLU wrote and submitted a brief to the Court that supported Perry’s position and argued that any time police seek to use cell phone location data, they should first obtain a warrant showing probable cause.
During yesterday’s arguments, the three-judge panel was quick to focus on the right to privacy in both the United States and North Carolina Constitutions. When Judge John Tyson asked whether there was a difference between cell phones and the ways police used to track people in the past, Perry’s attorney, Michael Spivey rightly answered that cell phones are completely different. Under the Fourth Amendment, police cannot just go into a person’s home or hotel room because they want to. But tracking cell phones without a warrant would allow police to do just that. The Perry case is a perfect example because police had AT&T flip a switch and allow them to start spying on Perry in his hotel room. Furthermore, Judge Richard Dietz expressed concern that most Americans would neither have a clue nor think it reasonable that their phone companies could follow their every move and let the police do so without a probable cause warrant.
Spivey concluded his argument by comparing what police did to Perry to what British soldiers did to Americans in the lead up to the American Revolution. British soldiers used to get general warrants to search whenever, wherever, and whoever they wanted to without any cause. Our founders knew that was wrong, and therefore, sought to protect us from general warrants by creating, among other rights, the Fourth Amendment’s protection against unreasonable searches and seizures. If police are allowed flip a switch and track us without a probable cause warrant, as Spivey argued, we will be back at point in time when the government could without reason search “anywhere, anyone, any place, anytime.”