Oct. 3, 2012 at 4:47 PM ET
Law enforcement agents should be allowed to obtain 60 days' worth of cellphone location information from wireless carriers without a warrant, the federal government told a federal appellate court.
The case has been tried by a magistrate judge in Texas and appealed once to a district court; both times, judges ruled that the warrantless disclosure of cell site data violates the Fourth Amendment, which prohibits "unreasonable" searches and seizures.
The Department of Justice, in a brief filed earlier this year, said that the collection of cellphone data is consistent with the Fourth Amendment because "a customer has no privacy interest in cell-site records, which are business records created and stored by a cellphone provider in its ordinary course of business."
The American Civil Liberties Union Foundation, ACLU Foundation of Texas, Electronic Frontier Foundation, Center for Democracy and Technology, and National Association of Criminal Defense Lawyers filed a friend-of-the-court brief, saying otherwise.
Chris Soghoian, ACLU senior policy analyst, said on that organization's blog, "We believe that cellphone location data, particularly when collected over a lengthy period of time, reveals intimate facts about a person's private life. The appropriate legal standard for such private information should be a probable cause warrant, issued by a judge."
In contrast to GPS tracking devices, Soghoian wrote:
...cellphone surveillance is cheaper, more covert and requires less labor. Rather than having to crawl under someone's car, law enforcement officers can now collect cellphone location data through dedicated self-service surveillance websites provided by the phone companies. When so much sensitive data is just a click away, it isn't surprising that law enforcement agencies have embraced this method of surveillance.
Meanwhile, the ACLU and other civil liberties groups are asking the 6th U.S. Circuit Court of Appeals to rehear arguments in a case, the United States vs. Melvin Skinner, where the court ruled that law enforcement officials don’t need a warrant to track suspects via cellphones.
Skinner was arrested in 2006 with 1,100 pounds of marijuana in the motorhome he was driving, after law enforcement officials tracked him via one of the prepaid phones he used.
6th U.S. Circuit Court of Appeals Judge John Rogers wrote in the 2-1 majority opinion: "When criminals use modern technological devices to carry out criminal acts and to reduce the possibility of detection, they can hardly complain when the police take advantage of the inherent characteristics of those very devices to catch them."