(CN) - With the government petitioning for historical cell site location information related to a robbery, a federal magistrate on Friday solicited constitutional advice from the Electronic Frontier Foundation.
There are 87 opinions publicly available that address cell site information, but these decisions "are impossible to reconcile," U.S. Magistrate Judge John Facciola wrote.
The judge's call for input by the digital rights group comes on the government's renewed petition for disclosure of a particular telephone number's historical cell site information (CSLI).
Facciola had rejected the government's petition last year.
The underlying investigation involves a robbery, and the order is directed to AT&T. The phone number is redacted in the court's opinion.
Facciola said Friday he is "convinced that the request for CSLI raises serious statutory and constitutional questions."
These disparate decisions raise "fundamental factual questions, such as whether - with current cellular telephone technology - the signal that creates CSLI is itself a separate electronic communication from a cell phone or whether it is part of the same signal that carries the voice call," the seven-page opinion states.
Before deciding whether the government requires probable cause under the Fourth Amendment to request cell site information, the court must develop a factual record "about how cell phones work and what subscribers reasonably understand about how their phones are tracked," the judge said. "For example, how frequently is CSLI generated and how closely can it track a person's location? Is it only generated when a phone call is made? If the government asks for only a narrow subset of CSLI, what does the provider actually give the government? What do the terms of service say about tracking a person's location? Does any location information appear on a person's bill?"
With these questions in mind, Facciola appointed the Electronic Frontier Foundation amicus curiae, and asked both the government and the nonprofit to provide him with a list of specific topics that will help provide scope for the relevant issues.
These lists will assist the court in formulating what questions the court will ask representatives from AT&T to fill out the factual record.
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