US gov't cannot use cell phone IDs without a warrant, court affirms

How much does your cell phone say about who you are and where you are? Last year, the US government wanted the authority to use the information cell phones put out naturally in its own investigations. Yesterday, a judge said no.

Pennsylvania US district court judge Terrence McVerry late yesterday denied the US government's appeal of a federal magistrate's order last February, that effectively prohibited the government from acquiring location information from individuals' cell phone location tracking devices without a warrant.

Last February, a five-judge panel of magistrates denied a government petition that would have enabled it to use live data generated from cell phones to track the locations of suspects, without a court order. Specifically, the government wanted to use the Stored Communications Act as a basis for requesting cellular service providers for information about a suspect's whereabouts. In its argument, the government stated that its agents determine suspects' whereabouts through clandestine visual tracking already, without court order, and that clandestine electronic tracking would not be very different.

In essence, the government argued, a suspect does not have the Constitutional right to his or her own location. The magistrates considered whether any such tracking would constitute a violation of citizens' rights under the Fourth Amendment of the Constitution.

Writing on behalf of the panel last February, Judge Lisa Pupo Lenihan noted that there's no doubt that the government may be entitled to such information in the course of its investigation. However, the judge continued, the standard which must be met for proving probable cause in court, is not unreasonably high.

"The issue is not whether the Government can obtain movement/location information, but only the standard it must meet to obtain a Court Order for such disclosure and the basis of authority," Judge Lenihan wrote in February (PDF available here, courtesy Judicial Review). "It emphasizes that the Fourth Amendment standard is not a difficult one, requiring only that the Government support its belief of criminal activity and the probable materiality of the information to be obtained.

"The Court notes that it is entrusted with the protection of the individual civil liberties, including rights of privacy and rights of free association, so paramount to the maintenance of our democracy," the judge continued, on behalf of the magistrates' panel. "The Court also observes that the 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 [cellular service provider's] electronic transfer of such information, render these requests particularly vulnerable to abuse."

Lenihan went on to say that most Americans aren't really aware of how much location information their cell phones are capable of divulging, adding "most Americans would be appalled by the notion that the Government could obtain such a record without at least a neutral, judicial determination of probable cause."

Essentially affirming the panel's conclusions yesterday, Judge McVerry merely stated that he carefully considered amicus briefs filed in opposition to the government's request, including from the American Civil Liberties Union, and used their arguments to conclude Judge Lenihan's order "is not clearly erroneous or contrary to law."