The Obama Administration believes that you have no reasonable expectation of privacy when it comes to the whereabouts of your cell phones. As a consequence, it wants to permit warrantless tracking of cell phones, and Justice Department lawyers argue that the Fourth Amendment would not be violated if warrantless tracking policies would be implemented.
Of course, cell phone tracking goes on these days, as the story linked above indicates. But thus far, a U.S. Magistrate Judge has ruled against the Justice Department’s position, a ruling that would compel authorities to obtain warrants based on probable cause. It will be interesting to see how the case is resolved, and I am particularly interested in reading what law professor Orin Kerr of the Volokh Conspiracy has to say about this matter. In the meantime, my own sense is that if warrants are routinely and expeditiously granted to track cell phone location, then the Obama Administration’s request for warrantless tracking would be utterly and completely unnecessary. And as the title of this post indicates, if the Bush Administration were making this claim, the public firestorm of protest would have been nothing short of astonishing.
UPDATE: Please see Professor Kerr’s comment to this post, and this new post.