Tuesday, February 9, 2010

3rd Circuit Court to Take Landmark Cell Phone Privacy Case

We now have a location for the upcoming landmark privacy rights legal battle over what the proper legal standard should be when prosecutors demand cell phone location data. As reported in Law.com the 3rd U.S. Circuit Court of Appeals will hear arguments this week.

First, some background: What makes GPS devices a useful law enforcement tool (i.e. they track our whereabouts) is precisely what also makes them a privacy threat.

An editorial by the New York Times last year on the case, and whether law enforcement has the right to install GPS tracking devices in suspects vehicles without probably cause or a warrant hit the nail on the head:

A federal appeals court in Washington, D.C., heard arguments last week about whether police should have to get a warrant before putting a GPS device on a suspect’s car. It is a cutting-edge civil liberties question that has divided the courts that have considered it. GPS devices give the government extraordinary power to monitor people’s movements. The Washington court should rule that a warrant is required.


The Supreme Court has not considered the question of whether the police need a court order to install a GPS device. The government has tried to draw an analogy to a 1983 case in which the court ruled that the police do not need a warrant to use a radio beeper to track a vehicle on public roads, but the circumstances were different. In that case, the police were conducting visual surveillance of a particular suspect’s movements, and a beeper augmented the officers’ senses. A modern GPS device is a far more potent means of tracking people than a beeper


The New York Court of Appeals, the highest New York court, got it exactly right earlier this year, insisting that permitting police to install GPS devices without judicial oversight would be “an enormous unsupervised intrusion by the police agencies of government upon personal privacy.” As technology advances, government will continue to acquire new and more efficient ways of monitoring people. It is critical that the privacy rights guaranteed by the Fourth Amendment keep up with those advances.

Documents released by the ACLU have showed that of the states randomly sampled, New Jersey and Florida used GPS tracking without obtaining probable cause or warrants. Four other states, California, Louisiana, Indiana, Nevada and the District of Columbia reported having obtained GPS data only after showing probable cause.

Those documents were part of the ongoing lawsuit by the ACLU and Electronic Frontier Foundation on how the government tracks cell phone users. As these two privacy protection stalwarts argued in those cases, government tracking without a probable cause or warrant is a violation of the Constitution's Fourth Amendment, which guards against unreasonable search and seizure. Government prosecutors have argued that only a court order showing the tracking data is relevant to a criminal investigation is needed.

Adding fuel to the fire was last December's rather astonishing news that Sprint received 8 million law enforcement requests for GPS location data in just one year. The Talking Points Memo ("How Easy Is It For The Police To Get GPS Data From Your Phone?") added some needed context on the revelations:

Police can in some cases track cell phone location by merely telling a court that the information is relevant to an investigation, a legal expert tells TPM - a fact that may partly explain how law enforcement racked up 8 million requests for GPS data from a single wireless carrier in a year. An increasingly popular and easy-to-access surveillance tool for police, GPS data is not currently protected by the Fourth Amendment, and the standards for gaining access to the information are murky and highly variable. That's partly because one of the statutes that bears on the issue was passed in the mid-1980s, before many of the technologies involved were invented. And Congress hasn't done much to update the law since.

Now, we are one step closer to getting a final answer - or at least some precedence - on this fundamental and uncharted Constitutional question.

Law.com reports:

Justice Department lawyers argue that, by statute, they need only show "reasonable grounds" to believe that such records are "relevant and material to an ongoing criminal investigation." But a federal magistrate judge in Pittsburgh strongly disagreed in February 2008, issuing a 52-page opinion that said the prosecutors must meet the "probable cause" standard.


Now, in an appeal of Lenihan's ruling, the 3rd Circuit will become the first federal appellate court to tackle the question as Justice Department lawyers square off against a coalition of privacy and civil liberties lawyers from the Electronic Frontier Foundation, the Center for Democracy & Technology and the American Civil Liberties Union.


As cell phone users change locations, the cell phones "automatically switch cell towers," she wrote, and telephone companies "track the identity of the cell towers serving a phone."

In urban areas, where towers have become increasingly concentrated, Lenihan said, tracking the location of just the nearest tower itself can place the phone within approximately 200 feet, and triangulation data can provide an even more precise location, as close as 50 feet.

Phones equipped with global positioning system, or GPS, capabilities, can be tracked extremely accurately, Lenihan noted. Lenihan concluded that the data sought by the prosecutor amounted to "tracking information," and that Congress clearly intended to require prosecutors to meet a probable cause test to secure such data.

The Justice Department argues that Lenihan got the issues wrong because the statutes clearly allow the government to require "a provider of electronic communication service" to disclose "a record or other information pertaining to a subscriber."


But Freiwald argues in her brief that "to deny Fourth Amendment protection based on the government's assurance that it seeks only limited [cell phone location data] flouts the fundamental principle that Fourth Amendment protections may not be left in the hands of law enforcement agents."

Bankston, in a brief jointly filed by the Electronic Frontier Foundation, the ACLU and the Center for Democracy & Technology, urges the 3rd Circuit to uphold Lenihan's ruling on the grounds that Congress intended to give judges the discretion to deny such requests and require prosecutors to meet the ordinary standard for a search warrant.

Cell phone users, Bankston argues, have an expectation of privacy in such data because they "simply do not voluntarily expose their location whenever they make calls and receive calls ... nor do they do so merely by turning on their cell phones."

Click here for more.

I'd like to know more about those specific cases in which probable cause was not established and the tracking was done without warrants. We have seen too many examples of the government and law enforcement - particularly in recent years - using surveillance technologies not to actually protect Americans or "fight terrorism", but rather to stifle dissent (i.e. anti-war activists, economic and social justice protesters, etc.), monitor political "enemies", bust small time drug dealers, and even eavesdrop on journalists.

I am eager to find out who some of these cell phone users were (if not by name, but reason) and why they were tracked. And of course, because the government says it will only use this new surveillance power when its warranted, doesn't mean it true! Let's not let yet another privacy protection and cornerstone of our judicial system fall prey to the pervasive and unwarranted fear of terrorism and the subsequent abuses it tends illicit from our government. Stay tuned...as this case will effect the way in which the Fourth Amendment is interpreted in today's technological age for the years to come...


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