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Don't want to be tracked? Turn cellphone off, says magistrate 

Man using cellphone
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Don't want your location to be tracked on your cellphone by police? Just turn the GPS off, otherwise you've got no expectation of privacy, a federal magistrate said recently in a ruling. The ACLU calls the decision an "opinion straight from the Twilight Zone," as well as a violation of the Fourth Amendment's protections against illegal search-and-seizure.

The case involves a New York doctor who was recently arrested and indicted by the federal government for illegally distributing oxycodone, a prescription medicine for pain. Among the various ways the doctor was tracked by law enforcement, including the Drug Enforcement Administration, was via the GPS signals from his cellphone.

"Although the DEA agents requested a search warrant and the judge found that there was probable cause to believe that the cellphone location data would assist in the location and apprehension of an individual for whom there was already a valid arrest warrant, the judge later published a 30-page opinion further stating that he didn’t think the government needed to seek a search warrant in the first place," writes Chris Soghoian of the ACLU's Speech, Privacy and Technology Project.

The opinion by U.S. magistrate Gary R. Brown notes that the defendant in the case could have turned off his phone if he didn't want to be tracked.

"Cellphone users who fail to turn off their cellphones do not exhibit an expectation of privacy and such expectation would not be reasonable in any event," Brown wrote.

He also cited "business practices in the IT industry" that make phone users like the defendant not only "aware that their cellphone may be tracked and this information may be provided to authorities, but they expressly agree to these terms before operating the cellphone."

Phone users today, he said, know they are being tracked by advertisers or apps.

"There's a big difference between an individual sharing that information with a friend or advertiser and the government being able to collect that information without the user's consent," Soghoian told NBC News. "The judge seems to think that individuals should lose their expectation of privacy in all cases."

Amie Stepanovich, director of the Electronic Privacy Information Center Domestic Surveillance Project, told NBC News, that it is "not practical or reasonable to require individuals to turn off their cellphone to prevent law enforcement from accessing a stream of location data."

"Members of the Supreme Court have recognized that individuals have an expectation of privacy in details about their location over time," she said. "The Constitution has already balanced law enforcement interests with individual privacy in requiring a warrant, based on probable cause, for access to this type of information. To hold otherwise perverts the meaning of the Fourth Amendment."

Soghoian described Brown's opinion is "an outlier. Certainly, I've never seen anything like this, the reliance on the power-button angle" to justify tracking via GPS.

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