In a July 23 speech, Sen. Ron Wyden, D-Ore., a member of the Senate Intelligence Committee who is constrained by secrecy rules from explicitly discussing classified surveillance programs, repeatedly hinted that we have not yet learned the full extent of the NSA's domestic snooping. As Cato Institute privacy specialist Julian Sanchez noted, Wyden also mentioned the perils of cellphone tracking no fewer than five times, which would be puzzling unless it had something to do with the subject of his speech, NSA surveillance.
"Government officials are openly telling the press that they have the authority to effectively turn Americans' smartphones and cellphones into location-enabled homing beacons," Wyden said, adding that "the case law is unsettled." That warning takes on added gravity in light of the 5th Circuit's decision, the first by a federal appeals court to squarely address the issue.
The 5th Circuit's ruling sits uneasily with U.S. v. Jones, the 2012 decision in which the Supreme Court said police need a warrant to track a car by attaching a GPS device to it. Although the majority opinion hinged on the physical intrusion required to install the device, five justices expressed the view that the breadth of information generated by tracking someone's car for a month was enough to trigger Fourth Amendment protection. Two months of cellphone location data provide an even more intimate view of a person's private life.
Concurring in Jones, Justice Sonia Sotomayor argued that the Court should reconsider the third party doctrine in light of all the sensitive information that is nowadays stored outside of people's homes. Her suggestion is looking wiser by the day.