Friday, February 19, 2010

Tagged and tracked by your own cell phone

Last Friday, federal attorneys told the U.S. Third Circuit Court of Appeals that government officials should be able to track the location of Americans by following their cell phone transmissions -- without having to get a warrant. While the FBI and state and local officials have already obtained logs from mobile phone companies that reveal the locations of customers' telephones, the practice has never formally been endorsed by the courts. The latest federal arguments -- and rebuttals by civil liberties organizations -- give the courts the opportunity to either support or repudiate federal claims that Americans have no "reasonable expectation of privacy" so long as they carry cell phones.

In a lower-court decision (PDF) regarding an ongoing drug investigation, now being appealed by the federal government, Magistrate Judge Lisa Pupo Lenihan warned: "[T]he location information so broadly sought is extraordinarily personal and potentially sensitive; and that the ex parte nature of the proceedings, the comparatively low cost to the Government of the information requested, and the undetectable nature of a CSP’s electronic transfer of such information, render these requests particularly vulnerable to abuse."

Lenihan determined that the information sought by the Justice Department should be available only if the government could meet the usual probable cause standards necessary for a warrant -- a standard the Justice Department claims to find too burdensome.

Responding to the federal government's position that signing a cell phone contract implicitly gives the state the right to know your whereabouts, the American Civil Liberties Union says the government "should not be forcing the nation's 277 million cell-phone subscribers to choose between risking being tracked and going without an essential communications tool."

In a friend-of-the-court brief (PDF), the ACLU, along with the Electronic Frontier Foundation and the Center for Democracy and Technology, support Lenihan's refusal to allow federal access to what Justice Department attorney Mark Eckenwiler calls "routine business records held by a communications service provider." Since those records reveal people's locations, the civil liberties groups argue that they were properly withheld, and that their disclosure raises serious Fourth Amendment concerns. Specifically, they agree that revealing such information should require a warrant.

Lenihan's opinion was signed by four of her colleagues in a show of solidarity that seems, from records of the proceedings, to impress the appeals court judges. The civil liberties implications of the Justice Department move also seem to impress the judges; at one point, Eckenwiler was asked from the bench: "There are governments in the world that would like to know where some of their people are, or have been. For example, have been at what may be happening today in Iran, have been at a protest, or at a meeting, or at a political meeting. Now, can the government assure us that -- one, it will never try to find out that information, and two, whether that information would not be covered ...?"

It's unclear, however, whether that's an omen of the final result. The full oral arguments are available online in audio format at the court Web site (see files beginning with 08-4227)

Original report here

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