BUSY SIGNALS

Sometimes, when one calls upon the law, the law answers.  Responses to tricky questions can be gleaned from statutes or case law.  And sometimes, all you get is a busy signal.  Then, there is nothing but the collective opinion of a majority of Justices on a state or the federal Supreme Court to decide the matter.

Tracking cell phone location by law enforcement is a good example.  Does that require a warrant?  The constitution prohibits unreasonable searches, generally meaning warrantless ones, but does not actually define what is unreasonable.  Some courts have held that one has no reasonable expectation of privacy in the location of one’s cell phone.  After all, you know there is a GPS chip in there, you know it pings constantly on cell towers.  You can’t possibly expect your phone’s location to remain secret.

The Florida Supreme Court disagreed.  It was particularly concerned by all that can be revealed through 24/7 surveillance of this sort – every meeting, some of the people you meet, every place you visit, can be compiled in a government file.  Constant surveillance can reveal constitutionally sensitive information, from one’s church to one’s union affiliation and a slew of other personal data.  Previously, the high cost of visual 24/7 surveillance acted as a natural check on law enforcement excesses, the Court noted.  That is no longer the case, so the only check and balance left is a warrant issued by a neutral magistrate upon demonstration of probable cause.

The Florida Supremes were not content to limit their ruling to long-term surveillance.  They ruled in sharp contrast to those courts and advocates who argue for a lack of reasonable expectation of privacy in cell phone location regardless of how long surveillance continues.  Cell phones are so ubiquitous, and for many professionals indispensable, that it is the State that is unreasonable in demanding that the citizenry should choose between turning them off or being freely tracked.  Carrying a cell phone, Florida’s highest Court decided, does not constitute consent to being tailed.

Fourth amendment considerations, let alone those arising from law enforcement surveillance, are unusual in commercial litigation.  Business owners may nevertheless find there the inspiration to find an attorney who understands both the reach and the limits of the law.