WASHINGTON-Another federal court has ruled that law enforcement may not track someone using a cell phone without probable cause.
The federal district court for the southern district of Texas said that monitoring the location of someone using only cell-site data soon will be technologically backward as more wireless carriers implement the enhanced 911 location rules.
“While the cell phone was not originally conceived as a tracking device, law enforcement converts it to that purpose by monitoring cell-site data,” said the court.
The ruling in Texas comes weeks after a similar ruling by a federal judge in New York. Both judges urged the government to appeal their rulings so that a final determination can be reached. An appeal has been filed in New York.
The rules implementing the Communications Assistance for Law Enforcement Act said that law enforcement was entitled to pen-register information from a cell-phone conversation at the beginning and end of the call. This information would make it similar to a pen register in the wired world, which gives the date, time and number called. Because the location is fixed in the wired world, the location is known.
Meanwhile, civil libertarians, technology groups and universities earlier this week said they are going to challenge rules recently imposed by the Federal Communications Commission requiring interconnected Voice over Internet Protocol providers to comply with CALEA.
RCR Wireless News reported last month that the Center for Democracy & Technology was preparing an appeal of the FCC’s expansion of CALEA to VoIP.
“We’re deeply concerned that extending a law written specifically for the public telephone network to these emerging technologies will stifle the sort of innovation that has been the hallmark of the Internet revolution,” said John Morris, CDT staff counsel.
A former FBI agent previously told RCR Wireless News the FCC made the right decision by not delving into the information services vs. telecommunications services debate, sticking instead to the belief that VoIP “substantially replaces” a telecom service so it is covered. CDT believes that because VoIP and other IP-based services are information services, they are not subject to CALEA.
“If `substantial replacement’ is to have any meaning, this is the right outcome,” said Les Szwajkowski, former FBI agent now with Raytheon Co. in praising the FCC’s decision. “There had been some concern on the law-enforcement side about Brand X and the information-services definition, but that was successfully trumped by substantial replacement.”
While the FCC rules did not say how interconnected VoIP-those that transfer calls to and from the public-switched telephone network-had to comply, many of those suing believe it will require the FBI to sign off on the surveillance technology. This fear is not unfounded; the FBI and the Department of Justice asked for this type of authority.
In addition to the CDT-led suit, universities and colleges also are suing citing the cost, which some say could be billions of dollars, to implement the rules.
