Fla. Supreme Court Asks: Is Privacy A Reasonable Expectation When It Comes To Cell Phones?

Oct 8, 2013

The Florida Supreme Court Monday wrestled with the implications new technology has for Floridians’ privacy. At issue is whether a person has a reasonable expectation of privacy when using mobile devices.

In 2007 Shawn Tracy was arrested for cocaine possession in Broward County after police tracked him using his cell phone data. Police did have a warrant for what’s called “historical data,” including numbers dialed and previous locations of Tracy’s phone, but public defender Tatjana Ostapoff argued following Tracy in real time violated Tracy’s Fourth Amendment rights.

“There’s no legal authorization for what they did. There is no court order that justifies what was done in this case and it’s our position that we had a reasonable expectation of privacy,” Ostapoff asserted.

But state attorney Melynda Melear disagreed. She argued that the data is technically historical and not real time because investigators had to ask the cell company for Tracy’s data instead of monitoring it directly. She also contended that it’s unclear if anyone using a cell phone really does have a reasonable expectation of privacy.

“Mr. Tracy not only did not have an actual subjective expectation of privacy in his cell data and location, traveling the roads. If he indeed had one, it’s not one that society would deem is reasonable,” Melear told the court.

Both the lawyers and justices struggled with balancing privacy and technology and expressed the need for the Legislature to more clearly define what a reasonable expectation of privacy is in a changing technological landscape.