It seems more and more apparent that all of the people waiting for federal courts to protect their privacy will decay into cobweb covered skeletons before the courts actually limit the power of the federal surveillance state.

On Monday, the U.S. Supreme Court rejected what Reuters called “a test case on privacy in the digital age.” The nine justices declined to weigh in on whether police need to obtain search warrants to examine cellphone location information held by wireless carriers.

The case revolves around a Florida man named Quartavious Davis. A court convicted him in a string of 2010 robberies in the Miami area. Police used Davis’ cell phone information to place him in the area of the crimes. He challenged his conviction because the police did not obtain a warrant before accessing his location information.

The SCOTUS declined to take up the case after the 11th U.S. Circuit Court of Appeals ruled in May that the failure to obtain a warrant did not violate Davis’ right to be free from unreasonable searches and seizures under the Fourth Amendment to the U.S. Constitution.

Ideally, Davis should have sued in state court under the Florida state constitution’s search and seizure clause, since it was state law enforcement officers who engaged in an unreasonable search without a warrant. But nevertheless, the federal court system’s failure to uphold the Fourth Amendment reveals an ugly truth – we can’t depend on courts to defend our rights.

The 11th Circuit’s ruling and the SCOTUS decision to uphold it by refusing to even hear it sets an ugly precedent that will now apply across the entire United States. Reuters summed up the court’s decision this way.

“Based on a provision of the federal Stored Communications Act, the government said it does not need probable cause to obtain customer records. Instead, the government said, prosecutors need only show there are ‘reasonable grounds’ for the records and that they are ‘relevant and material’ to an investigation.”

How the politically connected lawyers sitting on the federal bench pulled this reasoning out of the plain words of the Fourth Amendment will forever remain a mystery. Regardless, it sets the precedent that law enforcement agencies across the fruited plain will adhere to from this point forward. Any challenge to location tracking without a warrant will be met with “but the court says it’s OK.”

The good news is we don’t have to sit back and accept the opinion of federal judges as gospel.Wi

No matter what the court says, a state can limit the surveillance power of their law enforcement agencies by passing an Electronic Data Privacy Protection Act. This legislation prohibits police from obtaining electronic data from portable electronic devices without a warrant or consent. This includes location information.

This legislation not only protects privacy within a state, it also takes a step toward thwarting a practical effect of federal surveillance.

According to documents obtained by the Reuters, the NSA passes information to police through a formerly secret DEA unit known as the Special Operations Division (SOD). These cases “rarely involve national security issues.” The feds then encourage prosecutors to use the warrantless information to build cases without revealing its origin in a process known as “parallel construction.” Former NSA Chief Technical Director William Binney called this the country’s “greatest threat since the Civil War.”

The prohibition against law enforcement agencies “obtaining” warrantless data includes such data collected and shared by federal agencies.

Stop waiting for the federal government to limit the power of the federal government. It will never happen.

Not ever.

Contact your state representative and senator and ask them to introduce the Electronic Data Privacy Protection Act today.

Mike Maharrey

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