Ruling requires search warrant for cell users’ location

Privacy advocates triumphed over the Bush administration in a legal battle in which a federal court affirmed that wireless location information stored by a mobile-phone carrier is constitutionally protected and that law enforcement officials have to secure a search warrant based on probable cause before accessing such data.
“Cellphone providers store an increasing amount of sensitive data about where you are and when, based on which cell towers your phone uses when making a call. Until now, the government has routinely seized these records without search warrants,” said Kevin Bankston, senior staff attorney for the Electronic Frontier Foundation.
EFF was joined by the American Civil Liberties Union, the ACLU Foundation of Pennsylvania and the Center for Democracy and Technology in an amicus brief urging the U.S. District Court for the Western District of Pennsylvania to uphold a ruling by Magistrate Judge Lisa Pupo Lenihan earlier this year.
In that decision, Lenihan rejected the government applications for cellphone location information – past and present – based on the grounds (under the Stored Communications Act) that information is relevant to a criminal investigation. That legal standard for a government search is less stringent than the one – under the Fourth Amendment – requiring a showing of probable cause that information being sought will provide evidence in an investigation of suspected criminal activity. The Fourth Amendment protects against unreasonable searches and seizures.
“This landmark ruling is hopefully only the first of many,” Bankston stated. “Just as magistrates across the country have begun denying government requests to track cellphones in real time without warrants, based on arguments first made by EFF, so too do we hope this decision will spark new scrutiny of the government’s unconstitutional seizure of stored cellphone location records.”
In rejecting the Department of Justice’s challenge, U.S. District Judge Terrence McVerry concluded that after thorough review Lenihan’s ruling “is not clearly erroneous or contrary to law.”
The cellphone location issue surface in August 2005, according to EEF, when the first judge to issue a decision on the matter -Magistrate Judge Orenstein in the Eastern District of New York – publicly denied a government request that he said lacked proof of probable cause. EEF said that in taking that action, Orenstein revealed that DoJ regularly had been using a faulty legal argument to get secret authorizations from various courts for perhaps many years. Other federal judges subsequently followed Orenstein’s lead, EEF said.
Privacy groups and the government also have sparred over cellphone tracking .
In July, EEF and the American Civil Liberties Union sued the Bush administration in federal court to obtain records on allegedly unchecked cellphone tracking by the government.
The ACLU said it sought records through a Freedom of Information Act request filed with the Department of Justice in November after media reports surfaced about government officials using citizens’ cellphones to zero in on their locations and monitor their movements – sometimes without a warrant or any court oversight. The DoJ, according to the ACLU, had not adequately responded to the FOIA request.
The ACLU said it asked the DoJ for documents, memos and guides regarding the policies and procedures for tracking individuals through the use of their mobile phones as well as information on the number of times the government has applied for cellphone location information without establishing probable cause – and how many applications have been granted.
The ACLU pointed to news reports in which government officials claimed not to need probable cause to obtain real-time cellphone tracking information, with some federal law enforcement agents allegedly securing tracking data directly from wireless providers without any court oversight.
The Justice Department has insisted it follows the law and takes its cues from the court.
“We have no immediate comment on the suit, but will be responding appropriately in court,” said DoJ spokesman Dean Boyd said at the time. “With respect to cell-tracking data in general, it is important to remember that the courts determine whether or not cell-site data or more precise cell location data can be turned over to law enforcement in a particular case. Law enforcement has absolutely no interest in tracking the locations of law-abiding citizens. Instead, law enforcement goes through the courts to lawfully obtain data to help locate criminal suspects, sometimes in cases where lives are literally hanging in the balance, such as a child abduction case or a serial murderer on the loose.”
The wiretap issue has grown exponentially controversial in the seven years since the Sept. 11, 2001, terrorist attacks. Parent companies of the two largest mobile-phone carriers – AT&T Mobility and Verizon Wireless – and the No. 3 cellular operator, Sprint Nextel Corp., became targets of dozens of privacy lawsuits as a result of participation with the Bush administration’s then-secret, post-9/11 warrantless wiretap program. After a long, cantankerous debate in Congress, lawmakers passed legislation essentially giving telecom companies retroactive immunity from the suits as part of reforms to the 1978 Foreign Intelligence Surveillance Act. Privacy proponents and some in Congress criticized the legislation, which President Bush lobbied for and signed.
The two presidential contenders, Sens. Barack Obama (D-Ill.) and John McCain (R-Ariz.), voted for the bill.