Officers in numerous states and cities get detailed information from cell-phone carriers without a warrant -- and legislators ought to stop them.

Conor Friedersdorf

With the phrase "Big Brother is watching," George Orwell captured the central role constant surveillance plays in dystopian visions. It's no surprise that Americans are made uneasy by ubiquitous video cameras tracking our movements in much the same way as 1984's screens, or the prospect of countless, effectively invisible drones monitoring our streets from the sky. What bothers far fewer people is the practice of carrying, at all times in their pocket, a cell phone that permits their every move to be monitored. You'd think, given the Constitution's Fourth Amendment protections, that law enforcement would need a warrant to access such information.

But you'd be wrong.

As the New York Times reports, "Law enforcement tracking of cellphones, once the province mainly of federal agents, has become a powerful and widely used surveillance tool for local police officials, with hundreds of departments, large and small, often using it aggressively with little or no court oversight." Credit for the discovery goes to the ACLU, which used freedom of information laws to survey police departments nationwide about their behavior. Some jurisdictions require officers to obtain warrants before asking always compliant wireless carriers for data on their customers. But in many jurisdictions, there is no such deference to individual rights. Depending on your phone, officers can get GPS data that shows everywhere you've been, and they needn't even tell you they're doing so. It's a practice that renders privacy rights almost meaningless.

Perversely, cell phone carriers are even profiting from sharing information about their customers. Says the Times, "Cell carriers, staffed with special law enforcement liaison teams, charge police departments from a few hundred dollars for locating a phone to more than $2,200 for a full-scale wiretap of a suspect." Adds the ACLU, "then there are police departments in places like Gilbert, Arizona, which have purchased their own cell tracking technology."

There is reason to believe that the status quo wouldn't pass muster if brought before the Supreme Court. It has previously ruled against the warrantless placement of a GPS tracking device on a drug suspect's car. But there's no reason to wait for a judicial solution to this problem. Legislators ought to rein in law enforcement and reassert the notion that its impermissible for police to engage in intrusive surveillance without probable cause or judicial oversight. At present, the decision to use a cell phone effectively surrenders a huge amount of privacy, but it's hard to believe Americans favor that status quo, and changing it is within our power.