New Court Decision Affirms that 4th Amendment Protects Location Information

EFF.org ^ | September 11, 2008 | Unattributed

[Still Thinking]

Government Must Get a Warrant Before Seizing Cell Phone Location Records

San Francisco - In an unprecedented victory for cell phone privacy, a federal court has affirmed that cell phone location information stored by a mobile phone provider is protected by the Fourth Amendment and that the government must obtain a warrant based on probable cause before seizing such records.

The Department of Justice (DOJ) had asked the federal court in the Western District of Pennsylvania to overturn a magistrate judge's decision requiring the government to obtain a warrant for stored location data, arguing that the government could obtain such information without probable cause. The Electronic Frontier Foundation (EFF), at the invitation of the court, filed a friend-of-the-court brief opposing the government's appeal and arguing that the magistrate was correct to require a warrant. Wednesday, the court agreed with EFF and issued an order affirming the magistrate's decision.

EFF has successfully argued before other courts that the government needs a warrant before it can track a cell phone's location in real-time. However, this is the first known case where a court has found that the government must also obtain a warrant when obtaining stored records about a cell phone's location from the mobile phone provider.

"Cell phone 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 EFF Senior Staff Attorney Kevin Bankston. "This landmark ruling is hopefully only the first of many. Just as magistrates across the country have begun denying government requests to track cell phones 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 cell phone location records."

The American Civil Liberties Union (ACLU), the ACLU Foundation of Pennsylvania, and the Center for Democracy and Technology (CDT) joined EFF's brief.

For Wednesday's decision:
http://www.eff.org/files/filenode/celltracking/lenihanorder.pdf

For the full amicus brief in the cell phone records case:
http://www.eff.org/files/filenode/celltracking/LenihanAmicus.pdf

For the magistrate's order:
http://www.eff.org/files/filenode/celltracking/criminalapplicationorder_...

For more on cell phone tracking:
http://www.eff.org/issues/cell-tracking

[Still Thinking]

See, even a stopped clock (9th circus) is right a couple times a day.

[Tublecane]

The Fourth Ammendment is dead, no matter how many court decisions rush to defend its corpse. The criminal justice systems understanding of it is fundamentally flawed. Just look at the concept of probable cause. To law enforcement, probable cause is often something you explain to a judge after you take action. In the Constitution, probable cause is something one must have BEFORE a warrant is issued. Then there’s that whole thing about the warrants having to inform the court of precisely what law enforcement is looking for. “Plain sight” renders that naive provision obsolete.

[robomatik]

i’ll second that! why should it be mandated that i should have a g.p.s. system in my phone? if i go into the backcountry, i know how to handle myself. my big brother is on speed-dial -that doesn’t mean i want him to know where i am all the time. ;)

[j. earl carter]

When I think of "probable cause", I think of the drug sniffing dogs.

I used to work in a restaurant in the bar district of a college town. Often, I would see the cops pull people over and have the drug dog sniff around the car. The drug dog seemed to always indicate drugs. The cops would tear apart the car, and 90% of the time, find nothing and leave the driver with all of his stuff scattered around the parking lot.

IIRC, the supreme court ruled on this a few years ago, and found that the drug dogs were valid to use as "probable cause". As far as I can tell, their definition of "probable" is different than mine.

and yes, I understand that my post misses the point of your post, but I thought I would include my little anecdote.

[Still Thinking]

There should be some disincentive to search. Like if they don’t find anything, they have to pay to put it back together, rental car, lost work, and a little on top for vig. Course then the searches would have to be supervised or they would never fail to “find” what they’re looking for.

[j. earl carter]

Not only is there no disincentive to search, but with the confiscation laws there is a hugh incentive to search.

Just making the cops put the stuff back in your car the way they found it would probably be all the disincentive you would need.

[Still Thinking]

No, no. I don’t want them putting it back together. At that point in the process they have the incentive to do a crappy job at least, and maybe even discover something they missed on the first try. Plus, they get to use man hours they’re already paying for (and they’re taxpayer man hours anyway). I want the penalty in cash (personal cash, not taxpayer) and the work done by a professional whose customer is me, so that’s in whose interests he’ll work.