From The "If George W. Bush Did This" Files

by Pejman Yousefzadeh on February 11, 2010

[tweetmeme]

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.

  • edlarson

    You know, I am starting to wonder what the “Right to Privacy” actually means. The Supreme Court has upheld the fact that we do have a right to privacy and that it is implied by the Fourth and Fifth Amendments. To me a right to privacy is, just that, a right to move and act without my actions being known to prying eyes in the government, unless and until I do something that warrants observation. It is obvious that the government that we now has maintains that they have the right to invade my privacy just in case that I do something that would warrant their attention. These two ideas are not compatible with each other and sooner or later there will be a confrontation on this subject. The last time that we had to assert our collective rights to life, liberty, and property, there was a war. I hope that it doesn't come to that.

  • orinkerr

    Pejman,

    The Bush DOJ did do this, actually: DOJ has taken this position going back to the Clinton Administration and through Bush and now Obama. DOJ's position is pretty clearly correct, too:
    http://volokh.com/2010/02/03/legal-protection-f

  • Pejman_Yousefzadeh

    Thank you very much, Professor Kerr. I have written a post to reflect your comments.

  • ErnieBanks

    Yep. The netroots bashed Bush for screening overseas calls for keywords, looking for calls to terrorist organizations. The scope was limited, the purpose was defined. But the netroots called it an invasion of privacy.

    Obama comes along and wants to track everyone. Everyone. For no defined reason. Unlimited scope, undefined purpose. But that is ok because this is the change they believe in.

    Personally, I don't want Obama tracking where I am. So I turn the phone off when I am not using it.

  • orinkerr

    Pejman,

    The Bush DOJ did do this, actually: DOJ has taken this position going back to the Clinton Administration and through Bush and now Obama. DOJ's position is pretty clearly correct, too:
    http://volokh.com/2010/02/03/legal-protection-f

  • Pejman_Yousefzadeh

    Thank you very much, Professor Kerr. I have written a post to reflect your comments.

  • ErnieBanks

    Yep. The netroots bashed Bush for screening overseas calls for keywords, looking for calls to terrorist organizations. The scope was limited, the purpose was defined. But the netroots called it an invasion of privacy.

    Obama comes along and wants to track everyone. Everyone. For no defined reason. Unlimited scope, undefined purpose. But that is ok because this is the change they believe in.

    Personally, I don't want Obama tracking where I am. So I turn the phone off when I am not using it.

Previous post:

Next post: