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Did Orwell Use Cell Phones In 1984?

The government doesn’t need a search warrant to track you using your phone.

In George Orwell’s novel 1984, every citizen was subject to constant surveillance by means of two-way television sets that allowed the government to see into every home. The government could follow citizens wherever they went, for whatever reason or for no reason at all.

Fortunately, Orwell was writing science fiction. In real life, the government can’t use an electronic device to track your every move; that would be unconstitutional, wouldn’t it?

Apparently not. According to the United States Court of Appeal for the Sixth District (which includes Ohio), the government can track you using your cell phone at any time and for any reason, without a warrant and without probable cause to believe that you have committed a crime.

In 2006, the DEA believed that Michael Skinner was part of a drug smuggling operation, but it wanted to catch Skinner in the act. It could not place a tracking device on his RV without getting a warrant, because physically interfering with Skinner’s private property would be a “search” under the Fourth Amendment. The DEA never asked for a warrant.

Instead, the DEA began to trace Skinner by pinging the GPS locator on his cell phone.  The trace allowed the DEA to follow Skinner for three days as he drove his RV from Arizona to Texas, where he was arrested with 1,000 kilograms of marijuana.

At trial, Skinner asked the court to throw out the evidence, arguing that it was obtained through an illegal warrantless “search” of his cell phone information. The trial court refused, saying that tracking his cell phone was not a “search.”

The Court of Appeal agreed.  Justice John Rogers said that using a cell phone signal to track a suspect is no different from tracking the suspect by physically tailing his car. The only difference, Justice Rodgers said, is that tracking a cell phone is “more efficient.”

However, unlike tailing your car, tracking your cell phone allows the police to track you anywhere at any time. And, under the court’s ruling, the police (or any other government agency) can track you for any reason, without ever showing a reasonable basis for the surveillance.

In Skinner’s case, the DEA did have probable cause to believe that he was running drugs. But the Court of Appeal opinion makes it clear that probable cause has nothing to do with the government’s right to track your cell phone.

In essence, the court said that you have no reason to expect that your location is private, when your cell phone is broadcasting a GPS signal telling the government where you are.

Are there any limits to the government’s power to follow your movements using your cell phone? Perhaps. 

Supreme Court Justice Antonin Scalia, one of the most conservative members of the court, recently said that long-term surveillance of a person without good cause may be a violation of the Fourth Amendment.  He suggested that constantly watching a person may be unconstitutional because the scope of the surveillance itself is unreasonable, even if the method isn’t.

Of course, some will argue that if you have nothing to hide, you have nothing to fear from such warrantless surveillance.  However, the Fourth Amendment protects your right of privacy from unreasonable searches, even if you have nothing to hide.

One would hope that it protects your right of privacy from unreasonable surveillance, as well. Otherwise, Orwell’s 1984 could start to sound like a history lesson instead of a novel.

Have a question or a suggestion for a topic?  Email dspirgen@SpirgenLawFirm.com.

Patch posts are general discussions and should not be used as advice on any specific legal matter.  If you need legal advice on a particular situation, please consult an attorney.

This post is contributed by a community member. The views expressed in this blog are those of the author and do not necessarily reflect those of Patch Media Corporation. Everyone is welcome to submit a post to Patch. If you'd like to post a blog, go here to get started.

Earl Elevant August 25, 2012 at 07:51 AM
For the very few times this is used, it's not an unreasonable search.
Dennis Spirgen August 25, 2012 at 10:00 PM
1.3 MILLION times in one year is not a "very few times." That's how often the FBI requested cell phone data, including cell phone locations, from the three major service providers in 2011, according to data from a 2012 Congressional probe. And remember, that's without getting a search warrant or giving any reason for requesting the data. Does that still seem reasonable?
Earl Elevant August 26, 2012 at 03:57 AM
How many different people was that for? They don't request it for everyone. Yes, it's completely reasonable. It does nothing to hamper the people who they're pinging. I can't imagine living with the complete and utter fear that you must live with every day, thinking that everyone is just out there waiting to get you, track you, and watch your every move. The truth is, you're just not that important for the FBI or anyone else in law enforcement to care about where you are. Neither am I. They'd get bored watching where I go. "He's back at Subway. I wonder if he's getting the BLT or a salad this time." It's nothing but Cliched Fear Mongering 101. You even had to reference 1984. Really? We're nowhere close to 1984, despite your overwhelming fear. I guess the thing to take away from this is, if you don't want to get caught by the FBI, criminals will need to leave their cell phones home and avoid playing Words With Friends when they're committing criminal acts. 1984. Jeeze.
MZ August 26, 2012 at 12:14 PM
Earl, just wait until they start asking for your papers at random checkpoints. Don't worry though, they'll just be looking for bad guys. I'm sure you'll happily comply. Those who would give up Essential Liberty to purchase a little Temporary Safety, deserve neither Liberty nor Safety. Benjamin Franklin
Dennis Spirgen August 26, 2012 at 04:14 PM
Although I don't know how old Earl Elevant is, I suspect that he is too young to remember the era from 1940's through the 1970's when the FBI kept files on tens of thousands of everyday citizens who were suspected of belonging to the "wrong kind" of group or organization. In Earl's world view, there is no need for the Bill of Rights, because the government does not engage in unreasonable searches and seizures, coercive interrogations, or the suppression of religion, speech or the press. But while violations of civil rights do not occur for every person every day, they do happen far too often to far too many people. It is not a question of people "living in fear" of the government, Earl. It is a question of zealously watching the government to guard the freedoms that were enshrined in the Constitution. Those rights have to be defended for every person, or else they don't apply to any person. BTW, in response to MZ's quote from Benjamin Franklin, I offer one from Andrew Jackson: "Eternal vigilance by the people is the price of liberty."
Earl Elevant August 26, 2012 at 04:56 PM
Spoken like a true, bleeding heart ambulance chaser. I'm sorry for your world of fear. Maybe seek professional counseling to help deal with it. The courts have determined that it's not a search. You, as someone who should respect the courts' decisions, don't. When you start claiming rights from the Constitution that don't exist, they're no longer rights--they're wants. By the way, how many people have been arrested based on the files the FBI kept on regular people? How many houses were invaded and the occupants taken off to gulags? It's a right of the government. Sorry, but that's where it is--no matter how much it terrifies you. Wants do not equal rights. In this case, the government has the right. You have the want. Deal with it.
Earl Elevant August 26, 2012 at 04:58 PM
So many people living in so much fear. No wonder this country is on the slippery slope to obscurity.
I.M. Wright August 27, 2012 at 12:25 PM
"Earl, just wait until they start asking for your papers at random checkpoints." That'll never happen. Take off your tin foil hat and shut up, right-wing nut.
Dennis Spirgen August 27, 2012 at 12:26 PM
Earl: No one loves an argument more than a lawyer, but when you get down to mere name-calling (bleeding heart ambulance chaser), it's not an argument. BTW, "the courts" have not yet determined the legality of warrantless cell phone tracking. ONE court has made a ruling. Keep watching for future rulings from other courts. Although I don't agree with your position, I'm glad to see you take an interest in legal issues. That's the whole point of the blog.
I.M. Wright August 27, 2012 at 12:47 PM
People here need to focus on the issue of the case cited in this blog. And that is of a cell phone SIGNAL (key word) -- NOT a phone call (NO, it is NOT the same). When you use a cell phone, you are using public airwaves because your signal is using towers ("pinging"). The same goes when you use wireless anything for communications. I agree with this ruling. People who play the "constitution" (and the like) card any chance they get need to slow down and think for a minute (or longer if you're slow). It's the same as those who think they have all of this privacy on the internet (which is why I LMAO at everyone who thinks they can say what they want behind an alias). I can go to court and get a subpoena for a website to turn over IP information, etc. about specific poster(s) if I need to for litigation (and I have done that before). It happens every day. We're not talking about your call being intercepted or "tapped". We're not talking about your property being seized. We're talking about a SIGNAL -- which is NOT your property -- being carried among public airwaves/satellites for surveillance. Don't like it? Then don't use wireless devices. This is no different than someone physically doing it. Another key word here is from Justice Scalia who said "may" (several times). It's a key word because each case is different and varies on facts specific to that case.
MZ August 28, 2012 at 02:10 AM
I.M. Whatever happened to not trusting the government? Wasn't that a big deal not so long ago amongst the liberals? What changed? Now that your guy is in charge, everything will be fine. You were probably screaming about the patriot act and Bush, but now silence. Way to yell shut up, and name call when you don't agree with someone. My kids used to do that but thankfully they out grew that phase. You probably will too at some point.
Earl Elevant August 28, 2012 at 03:18 AM
I guess a good point is to keep *your* words out of *my* mouth (the Bill of Rights not being necessary) and you won't have labels placed on you. Also, if you're discussing something with me, don't talk about me in third person like you're lecturing and using me as some sort of example.
jiim may August 28, 2012 at 11:42 AM
I.M.Wright, you laugh at people hiding behind internet,what do you think you are doing moron. Put your reall name out there.
Gina J. August 31, 2012 at 10:53 AM
some free country.....
jiim may September 02, 2012 at 11:27 AM
What does that comment mean, gina
Gina J. September 02, 2012 at 12:21 PM
my point is that if this is the land of the free then why would some of us need to produce papers to show who we are are or have to wait in a check point line to see if maybe just maybe we have been drinking, this to ME is NOT freedom. I fear the day (sooner than later) that drone's are used by our police to see what we are really up to and trust me on this it's coming. Does anyone ever ask why all those empty prisons built by Chaney in the Nevada desert are for??? some free country....
jiim may September 03, 2012 at 01:08 PM
We wouldnt have to worry about your concern if we thin the herd and get rid of the scum.
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