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For those of us who believe that the Bureau of Alcohol, Tobacco and Firearms (BATF) should be a chain of convenience stores and not a government law enforcement agency, interest is high in a case heard Friday by a Federal Appeals Court regarding your right to privacy. The BATF (the law enforcement agency, not the convenience store) is hoping to have an earlier decision overturned that would allow them to use data held by cell phone service providers to pinpoint the location of most cell phone users at any time in the past without first obtaining a warrant.

The Feds’ argument is that when you’re using your cell phone, you have no reasonable expectation of privacy. Civil libertarians beg to differ, and argue that this is a landmark case for the digital age. As a people, we will only become more technologically connected as time goes by, and it is important to establish the boundaries of our privacy now.

The problem is that as we become more connected we leave more and more traces of our lives lying about. In the case of cell phones, as long as your phone is on, your location can be determined to within 50-meters using a process called Uplink Time Difference of Arrival (UTDOA). Though you only use one cellular site at a time, your phone is usually within range of several towers, and all of those sites log what time your signal arrives. From there it’s a pretty easy math step to determine your location. Since the signal your phone sends out travels at a known, fixed speed, when data from three or more cell sites is compared, the difference in the arrival time means the signal could have only originated from location. While this used to be the stuff of spy movies and dystopian science fiction novels, tracking your movements doesn’t require satellites and supercomputers; the same calculations are performed by GPS receivers costing less than a hundred bucks. Tracking you, tracking everybody, is cheap, easy and when done by the cops, without a warrant, is a violation of your constitutional rights.

When the Feds pull EVERYONES data from a cell phone service and begin to analyze it for patterns, vis-à-vis a crime, they are conducting a warrantless search. The FBI used this technique to break up a bank-robbery gang in Dallas, placing two men’s phones in proximity to a series of banks shortly before they were hit, but in so doing, trampled the rights of thousands of law abiding citizens who had not stuck up a bank, and that’s a problem.

The 4th Amendment specifically protects you from these types of searches, requiring law enforcement to obtain a warrant from a judge that describes the place to be searched, and the persons or things to be seized. Furthermore, though it’s not explicitly written in the Constitution, massive data-fishing trips also violate a fundamental concept of U.S. law, a presumption of innocence. This presumption flows from the 5th Amendment which guarantees us due process under the law.

You might say to yourself, “I’m a law abiding citizen, why should I care?” But are you? Using the government’s logic, a law enforcement agency could pull cell phone data from sites located along US 75, calculate the relative speed of vehicles traveling between points A and B and mail a speeding ticket to everyone who exceeded the posted limit. An absurd example perhaps, but it illustrates how pervasive and intrusive warrantless searches could be if the Third Circuit Court overturns a subordinate court’s decision and gives the BATF the keys to the candy shop.

The only good news is, that the very reason the BATF wants this decision overturned almost guarantees it won’t be. Federal agents know that any judge worth his or her gavel wouldn’t sign a warrant allowing such broad and invasive data mining, so they want a decision that frees them to search without one, and that isn’t likely to happen.

I could be wrong, but I don’t think so.

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