Court allows warrantless search of cell-tower records.

Court rules that police may track cell phone locations without warrant.

drawing: Daniel Roca ES

US District Judge Royce C. Lamberth of the District of Columbia ruled several weeks ago that investigators don’t need to obtain a warrant based on probable cause to access a suspect’s location history that’s logged by cell phone towers. The judge based his opinion upon the supposition that mobile phones are equivalent to wired communications. His ruling conflicts with a federal appeals court ruling from last year that rejected federal government claims that it didn’t need a search warrant to track suspects using GPS location-tracking devices.

Judge Lamberth ruled that under previous court rulings governing wire communications, there is no reasonable expectation of privacy in the numbers a customer dials using a landline. According to him, cell phones are similar: cellular customers have no privacy expectation for data their handsets transmit to nearby towers. The industry refers to this data as CSLI (Cell-Site Location Information).

I wanted to write about this ruling weeks ago because it will have a profound effect on our privacy. It appears that this issue will continue to bounce around in the courts for a while. These conflicting opinions may be settled by legislation. In the meantime, if you want to prevent your cell phone’s location from being tracked, turn off your cell phone. If you really want to prevent your cell phone from being tracked, remove its battery.

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4 thoughts on “Court allows warrantless search of cell-tower records.”

  1. Well, the good news is that oral argument in U.S. v. Jones was heard yesterday (Nov. 8th) before the U.S. Supreme Court, so perhaps you’ll soon have an answer. In Jones, the life sentence for cocaine distribution was overturned because the use of a GPS tracker violated the unreasonable search provision of the Fourth Amendment. The court requires a warrant when the government wants to attach a GPS device to a vehicle. http://www.scotusblog.com/case-files/cases/united-states-v-jones/

    Chief Judge Royce Lamberth, U.S. District Court for the District of Columbia, recently ruled that prosecutors are not required to obtain a warrant for the release a suspect’s cell phone location data. Instead, prosecutors must receive permission to obtain the requested data. Police have to explain to a judge why that information is relevant to their investigation. This burden is lower than that required for a warrant (and would likely be a much faster process).

    Judge Lamberth reversed the Order of Magistrate Judge Facciola, who had ruled against the police in the armed robbery case. Judge Facciola required the government to obtain a warrant to compel the cell phone service provider to release a suspect’s cell phone location data.

    In a difficult-to-read Order (because of all the redactions http://legaltimes.typepad.com/files/lamberth_ruling.pdf), Judge Lamberth said that Magistrate Judge Facciola had concluded that cell phone data — including the location of the tower that transmitted a call—is “tantamount to…continuous GPS surveillance.” The Order contains an analysis of the Stored Communications Act, which of course did not contemplate cell phones.

    What Judge Lamberth has done is to split the cell phone data apart – he is treating the location of the phone as having different privacy expectations and protection from that of the text or conversation taking place. He also distinguished this case from Jones because he treated “historical CSLI” data as being different from “real-time GPS monitoring.” “CSLI” is cell-site location information.

    He reasoned that a “reasonable cellular phone customer presumably realizes that his calls are all transmitted by nearby cell-site towers, and that cellular phone companies have access to and likely store data regarding the cell-site towers used to place a customer’s calls.” Also, a person’s “decision to place a cellular phone call and thus provide information regarding his location to the phone company thus defeats an individual’s privacy interest in that information.”

    Unfortunately, the existing laws did not contemplate the burgeoning use of cell phones and other communications. They have not kept up or been modernized, especially in the area of privacy. After 9/11, there are other concerns as well as laws that will need to be taken into consideration.

    According to the ACLU, Judge Lamberth’s above reasoning is flawed. They have a valid point about the surprise earlier this year, when it was revealed that the iPhone retained a log of location information. They also believe that “using a cell phone, even if you know that the phone company has access to your location, shouldn’t mean that the government has a right to access this sensitive information about who you are and where you go without going to a judge and getting a warrant.”

    The ACLU would like everyone to write to Congress about updating the federal law that should protect this information, the Electronic Communications Privacy Act (ECPA), which is currently celebrating it’s 25th anniversary.

    http://www.aclu.org/blog/technology-and-liberty/dc-judge-government-doesnt-need-warrant-demand-cell-phone-location

    There is also an older (2006) but good review of some of the issues at this site: http://www.mondaq.com/unitedstates/article.asp?articleid=37760

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  2. I forgot to say that the Jones case could be decided narrowly — on just the use of tracking devices — or very broadly to include cell phones, or even satellite tracking etc. That would then affect the decision in the warrantless search of cell-tower records in the case mentioned above.

    You can read the oral arguments in the Jones case before the US Supreme Court on 11/8/11: http://www.supremecourt.gov/oral_arguments/argument_transcripts/10-1259.pdf
    It includes questions and comments made by the Justices, some of which include cell phone issues. It looks as though they are interested in cell phones but that is no guarantee that they will rule on them in this case.

    There are a couple of interesting articles on this topic:
    Forbes: http://www.forbes.com/sites/kashmirhill/2011/11/08/supreme-court-justices-concerned-about-pervasive-technology-enabled-government-surveillance/2/

    Above the Law: http://abovethelaw.com/2011/11/judges-are-getting-concerned-about-undeniably-creative-warrantless-cell-phone-tracking/

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  3. WASHINGTON — The Supreme Court on Monday unanimously ruled that the police violated the Constitution when they placed a Global Positioning System tracking device on a suspect’s car and monitored its movements for 28 days.

    But the justices divided 5-to-4 on the rationale for the decision, with the majority saying that the problem was the placement of the device on private property. That ruling avoided many difficult questions, including how to treat information gathered from devices installed by the manufacturer and how to treat information held by third parties like cellphone companies.

    http://www.nytimes.com/2012/01/24/us/police-use-of-gps-is-ruled-unconstitutional.html

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  4. I should have added the link to the full Supreme Ct opinion: http://www.supremecourt.gov/opinions/11pdf/10-1259.pdf

    It looks like the majority decided on more narrow grounds than many were hoping; it may be years before we know more about privacy expectations / searches of cell phones and other devices. However, read Justice Alito’s concurring opinion (pages 24-34) for discussion on those and other ideas — here’s a little of it:

    Recent years have seen the emergence of many newdevices that permit the monitoring of a person’s movements. In some locales, closed-circuit television video monitoring is becoming ubiquitous. On toll roads, automatic toll collection systems create a precise record of the movements of motorists who choose to make use of that convenience. Many motorists purchase cars that are equipped with devices that permit a central station to ascertain the car’s location at any time so that roadsideassistance may be provided if needed and the car may be found if it is stolen. Perhaps most significant, cell phones and other wirelessdevices now permit wireless carriers to track and recordthe location of users—and as of June 2011, it has been reported, there were more than 322 million wireless devices in use in the United States.8 For older phones, the accuracy of the location information depends on the density of the tower network, but new “smart phones,” which are equipped with a GPS device, permit more precise tracking. For example, when a user activates the GPS onsuch a phone, a provider is able to monitor the phone’s location and speed of movement and can then report back real-time traffic conditions after combining (“crowdsourcing”) the speed of all such phones on any particular road.9 Similarly, phone-location-tracking services are offered as “social” tools, allowing consumers to find (or to avoid)others who enroll in these services. The availability and use of these and other new devices will continue to shape the average person’s expectations about the privacy of his or her daily movements.

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