Warrants Optional for|Cell Phone Location Data

     (CN) – In a closely watched privacy case, the 3rd Circuit ruled Tuesday that judges can require the government to get a warrant to view someone’s cell phone location records, but that the warrant is optional.

     In the underlying case, the government sought an order forcing a cell phone carrier to disclose a customer’s “historical cellular tower data,” which can be used to trace the location of a call.
     Prosecutors said the records were needed in a major drug-trafficking investigation.
     A magistrate judge denied the government’s request, saying the government needed a warrant based on probable cause, as the data could be used to pinpoint calls made or received in a private home.
     The government argued vigorously that the location data should not be treated as information from a tracking device, which needs a warrant under the Stored Communications Act.
     The federal appeals court in Philadelphia acknowledged that a request for cell tower information “could elicit location information,” but said the production of such records doesn’t automatically require probable cause.
     Instead, judges should base a production order on “specific and articulable facts showing that there are reasonable grounds to believe that the contents of the wire or electronic communication … are relevant and material to an ongoing criminal investigation.”
     This standard is easier to meet than probable cause, but the law also gives judges the option of requiring a warrant showing probable cause.
     The appellate panel said the law contained an “inherent contradiction … or at least an underlying omission,” as the government can legally obtain the records with or without a warrant.
     “[W]e are stymied by the failure of Congress to make its intention clear,” Judge Dolores Sloviter wrote.
     “We respectfully suggest that if Congress intended to circumscribe the discretion it gave to magistrates … then Congress, as the representative of the people, would have so provided,” she added.
Although the appeals court stopped short of requiring a warrant, it cautioned that a law mandating the production of documents “based only on the government’s word may evoke protests by cell phone users concerned about their privacy.”
The American Civil Liberties Liberties Union and the Electronic Frontier Foundation applauded the ruling as a win for individual privacy rights. Both organizations had filed friend-of-the-court briefs opposing the government’s request.
     Catherine Crump, an attorney with the ACLU Speech, Privacy and Technology Project said the ruling “sends a message that merely carrying a cell phone should not make people more susceptible to government surveillance.”
     “Innocent Americans should not be made to feel the government is following them wherever they go — including in their own home,” she said.

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