Court Rules Probable Cause Needed to Track Cell Phones

A couple of months ago, TalkLeft asked whether the government is tracking your cell phone's movement. We know the government asks cell phone service providers to turn over location records that show the coverage area in which a subscriber's cell phone was transmitting on specified days. The question is whether the police need to show probable cause to obtain a court order for production of those records.

[A recent] ruling (.pdf) from Judge Terrence McVerry of the Western Pennsylvania U.S. District Court deals a blow to investigators who have been getting cellphone location data on in the past simply by proving to a judge that the information would be relevant to an investigation. That's the same standard used to force a telephone company to reveal the name and address of a subscriber.

Judge McVerry affirmed a well reasoned decision (.pdf) by Magistrate Judge Lisa Pupo Lenihan. The decision recognizes 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." [more...]

As the linked article notes, "other judges have disagreed with the logic of protecting this data as if it were very sensitive." Magistrate Lenihan and Judge McVerry got it right for all the reasons cited in Lenihan's scholarly decision.

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    Encouraging news. (none / 0) (#1)
    by oculus on Thu Sep 18, 2008 at 10:22:15 PM EST

    Not optimistic (none / 0) (#2)
    by Xclusionary Rule 4ever on Thu Sep 18, 2008 at 11:05:50 PM EST
    I'm not sure people have a protected privacy interest in public movements.  It is perfectly legal for a private investigator or cop to tail someone as they go from extra-marital affair to massage parlor to gay nightclub to psychiatrist's office.  The cell phone records, so long as they are just used to triangulate locations, are not testimonial evidence. They don't tell us what is going on behind closed doors.  There is really no difference between tailing a suspect for a few days and obtaining his cell phone positions, except that obtaining the phone records is way easier and way less reliable.  We don't know who was holding the cell phone that whole time.

    It's nice to see a judge showing deference to privacy these days, but unless there is a case out there that says police can't follow a person everywhere they go without a showing of probable cause, I don't hold out much hope for further rulings like these.  Especially not higher up than the district court level.

    Even if this holds up, (none / 0) (#3)
    by Ben Masel on Fri Sep 19, 2008 at 12:38:59 PM EST
    there's a need for new Statutes to clarify Privacy rights in civil subpoenae and strictly private use by the telcos.