WASHINGTON-The Electronic Frontier Foundation blasted a federal judge’s decision to give the Department of Justice access to cell-phone location information. The ruling appears to be within the scope of the digital wiretap law, but comes amid revelations that President Bush authorized phone wiretaps without warrants.
EFF said the decision by Magistrate Judge Gabriel Gorenstein of the U.S. Federal Court for the Southern District of New York directly contradicted decisions in three other recent cases. Acknowledging the other conclusions, Gorenstein said the facts in his case were different.
“These cases appear to involve requests for cell-site information that go beyond both what has been sought in this case and what has actually been received by the government pursuant to any cell-site application in this district. First, the cell-site information provided in this district is tied only to telephone calls actually made or received by the telephone user. Thus, no data is provided as to the location of the cell phone when no call is in progress,” wrote Gorenstein, in a decision updating a warrant originally approved Oct. 19.
The Communications Assistance for Law Enforcement Act gives law enforcement access to pen-register information from a cell-phone conversation at the beginning and end of a call. The information is 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.
The Department of Justice has chosen not to appeal the other three digital wiretap cases. Decisions in the other cases essentially rejected the government’s request to obtain cell-phone location information. The government wanted access to the information without probable cause and regardless of whether a conversation was taking place. Since the latest decision contradicts the decisions in the three previous cases, the EFF warned that other federal judges now have no clear direction on the issue.
EFF did not return calls to RCR Wireless News about why it was so disappointed with the Gorenstein case. A Dec. 21 EFF Internet post, “Bad Ruling on Cell-Phone Tracking: What a Difference a G Makes,” calls Gorenstein’s legal analysis flawed, and contrasted it with the legal analysis of Magistrate Judge James Orenstein of the U.S. Federal Court for the Eastern District of New York.
“While Orenstein referred to the government’s legal arguments variously as `unsupported,’ `misleading’ and `contrived,”‘ wrote Kevin Bankston, an EFF staff attorney, “Judge Gorenstein bought the government’s arguments hook, line and sinker.”
Surveillance has become a hot topic again after The New York Times recently revealed that the National Security Agency has been eavesdropping on phone calls without warrants. The president said his approval of the program was within the law.
The Senate Judiciary Committee has indicated it will hold oversight hearings on the NSA’s surveillance program, which included collaborations with large telephone companies for access to telecommunications switches.
The revelations have aided opponents of the USA Patriot Act. The Patriot Act was recently extended for five weeks so that the House, which wants to extend the law permanently, and the Senate, which wants to curb the Patriot Act, can work out their differences.
Included in the Patriot Act is law enforcement’s ability to use roving wiretaps. Roving wiretaps allow law enforcement to tap a person instead of a phone. In other words, police would only need one wiretap order to tap a suspect’s wireline home phone, office phone and a mobile phone-instead of three separate wiretap orders. The long-sought-after provision was included in the Patriot Act passed in the fall of 2001, but was given a sunset date at the end of 2005.
