NEW ORLEANS (CN) - The government need not obtain probable cause search warrants for cellphone user data, because customers have "no reasonable expectation of privacy," a Justice Department lawyer argued Tuesday before the 5th Circuit.
Nathan Judish, senior counsel for the Justice Department's Computer Crime and Intellectual Property Section, argued that because cellphone companies store usage information at their own discretion, they act as witnesses in a criminal investigation where any relevant information is admissible without a warrant.
Tuesday's hearing stems from a government bid for judicial orders authorizing the disclosure of 60 days of location data from two cellphone companies as part of a routine investigation.
U.S. Magistrate Judge Stephen Smith rejected the government's requests in 2010, saying it needed to apply for a search warrant supported by probable cause, and a federal judge agreed.
The Justice Department is now appealing that decision to the federal appeals court in New Orleans.
Judge Thomas Reavley, one of three judges on the 5th Circuit panel, suggested that maybe Smith required the search warrant because cellphone technology is forever advancing, and future cellphone records might reveal much more than they do today.
Judish said the federal appeals court need not address possible future technology in its ruling, only the technology that's currently available.
But Susan Freiwald, a professor at University of San Francisco's School of Law, said cellphone technology is already capable of "massive surveillance," and argued that the government's request for cellphone records for a 60-day period is "too long and too intrusive."
Freiwald refuted the government's claim that just because cellphone users know that their phones are "tracking devices," they should reasonably expect to be tracked by them.
"The rule is not that mere access to information is subject to no expectation of privacy," Freiwald said.
She noted that the government in this case wants to "be provided on a continuous basis all information related to a call." In previous cases, Freiwald said the government asked for cellphone registration data and location data, and data pertaining to all cellphone tower customers in a given area before and after a certain time.
"Without a warrant, agents are engaging in a massive surveillance of people," Freiwald said. She said the United States claims a warrant is not required for this information.
Hanni Fakhoury, staff attorney for the Electronic Frontier Foundation in San Francisco, said technology is advanced enough that cellphone records can reveal not just where people have been, but also the patterns of where they go on a regular basis - a bakery, a mosque or a gay bar, for example.
Fakhoury also said cellphone towers are continuously being built to advance cellphone technology, and that "the location of a specific tower reveals increasingly more about location" of the cellphone user.
For instance, Fakhoury noted the 250 cellphone towers within a two-mile radius of the courthouse where the hearing was held. Cellphone records can easily indicate not just a customer's general location, he said, but the specific intersection or possibly even to what portion of a building a cellphone user has been.
The three judge panel contained Judge Reavley, Judge James L. Dennis and Judge Edith Clement. The judges didn't indicate how or when they will rule on the matter.
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