Legal And Common Definitions Of Privacy At Odds In Fla.

Oct 11, 2013

A recent Florida Supreme Court case is forcing justices to consider profound questions about what a reasonable expectation of privacy is. What the public may consider private space might not be, according to the letter of the law.

Shawn Tracey, was arrested in 2007 for possessing a kilogram of cocaine. He’s not arguing that he’s innocent of possession but he is challenging how investigators caught him – by using his cell phone location data. His lawyer Tatjiana Ostapoff argued Tracey’s 4th Amendment rights were violated.

“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 said.

Ostapoff also disputed the validity of the police department’s warrant. She argued officers violated their own court order by tracking her client in “real time,” while the warrant only gave them permission to review Tracey’s past GPS data. But state’s attorney Melynda Melear said the information was obtained from the cell phone company and not directly from Tracey’s phone, making that tracking information admissible. She also contends cell phone users have no reasonable expectation of privacy anyway.

“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 countered.

A strict definition of cell phone privacy hasn’t yet been decided, but Florida State University law professor Sam Wiseman said one thing is for sure.

“People don’t have a reasonable expectation of privacy in what they knowingly expose to third parties,” Wiseman pointed out.

Wiseman says one of the latest privacy cases before the U.S. Supreme Court found that a person’s 4th Amendment rights were only violated when police encroached on a constitutionally-protected space. In Shawn Tracey’s case, investigators didn’t physically violate his space. But, Wiseman acknowledged that the privacy question is still unclear because of a disconnect between the common and legal definitions of privacy.

“So I think from an everyday speech standpoint I would be surprised if most people wouldn’t agree that we have some expectation of privacy in our day to day location, even over a short period of time. But, whether the Supreme Court will agree, I think is a much more difficult question,” Wiseman said.

Both the Florida Supreme Court Justices and the lawyers arguing before them expressed the desire for the Florida Legislature to decide whether a person’s cell phone is considered a private space. During oral arguments, Justice Jorge Labarga did say he thinks that’s where the legislature is heading.

“Our legislature just passed this year a statute that prohibits the use of drones by law enforcement and interestingly enough the title of the statute that they chose was quote ‘freedom from unwarranted surveillance act.’ I mean, that seems to be where the legislature is going,” Labarga said.

Still, Wiseman expects Shawn Tracey’s case and similar ones around the country will ultimately be decided at the federal level.