Obama DOJ Asks Court to Okay Seizure of Cell Phone Location Data Without Probable Cause

The Obama Justice Department, in briefs filed by Bush holdover U.S. Attorney Mary Beth Buchanan (the one who prosecuted Tommy Chong and successfully sought a prison term for his shipping drug paraphernalia through the mail, and the one who prosecuted a 56 year old recluse for writing obscenity, and the one who has said Obama should let her stay on the job after his election) has taken the position that your whereabouts, as determined from your cell phone through records kept by your cell phone provider, is not protected by the Fourth Amendment.

There has been a split among federal district courts on this. Most say that before the Government can request cell phone providers to turn over cell site locator records -- which show where you are when on the phone by showing where your phone is when it is turned on -- they must submit an affidavit showing probable cause for the request. That's because unlike a pen register, which only shows numbers dialed from the phone, or a trap and trace, which shows numbers calling the phone, cell site tower records show the location of the the phone when being used. That makes it like a tracking device and people have an expectation of privacy in their whereabouts.

The first case to hit the federal appellate courts on the issue is one from the Western District of Pennsylvania -- thus the involvement of AUSA Mary Beth Buchanan. [More...]

The District Court and Magistrate Judge ruled the Government must make a probable cause showing that the location records will provide evidence of a crime. Buchanan argues the lesser standard applicable to pen registers and trap and traces, that only a showing that the data is relevant to an ongoing investigation, is necessary. Prosecutors routinely use information obtained from pen registers, trap and traces and cell site locator records to get wiretaps.

At issue in the Pennsylvania case is "historical" cell phone location records. Buchanan argues it's no different than pen registers and trap and traces because it doesn't intercept the voice. Scholars and many other judges have disagreed, saying when you use the cell phone to determine location, it's like a tracking device. The law requires probable cause for tracking devices.

Here's an article about the controversy. The Amicus Brief (pdf) filed by law professors in the case, argues persuasively in my view that:

Government acquisition of cell-site location information (“CSLI”), whether historical or prospective, constitutes a Fourth Amendment search because it intrudes upon users’ reasonable expectations of privacy.

It can also implicate the First Amendment.

As the Magistrate Judge persuasively presented, CSLI may disclose to law enforcement agents that a cell phone user has attended an Alcoholics Anonymous meeting, sought AIDS treatment, or visited an abortion clinic. See Lenihan Order, 534 F. Supp. 2d at 586 & n.6. CSLI may divulge when and where a user gave confession, viewed an X-rated movie, or protested at a political rally. Knowledge that the government could keep track of such information could easily inhibit valuable and constitutionally protected activities.

So why is the Obama Justice Department, through this Bush-holdover U.S. Attorney who refuses to tender her resignation, taking the position that so many say violates the Fourth Amendment?

These aren't NSA orders we're talking about, but orders in routine criminal cases, often drug cases. The applications and orders are sealed as are the orders to cell phone providers. So unless there is an Indictment, no one even knows they were entered or their movements were tracked.

The Government also uses cell site locator records to get real time information. They can ping the phone and find out you are home. They can direct law enforcement to your location so they know where to establish physical surveillance on you.

It should be a no-brainer that when the Government seeks information about your location from your cell phone they need a warrant based on probable cause, not some boiler-plate statement to the judge that the information is relevant to an ongoing investigation.

The lower court's opinion in the Pennsylvania case is here (pdf). The Obama Justice Department briefs, filed by Buchanan, are here (pdf) and here (pdf). The second was filed just last week.

The first court order on the topic, by Magistrate Judge Jamie Orenstein (a former federal prosecutor) in 2005 in the Southern District of New York, refusing the government's request for cell site locator records without a showing of probable cause is here.

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  • Display: Sort:
    A legislative fix is needed. (5.00 / 1) (#9)
    by Ben Masel on Fri Apr 24, 2009 at 11:04:44 AM EST
    Amend the Wiretap Act to create clear statutory Privacy rights in location data, with at least an opt-out on retention by the telco.

    Aside from Law Enforcement abuse, there's risks of leakage of this data to stalkers, etc.

    call it the Location Privacy Act.

    ATT just text-messaged me (none / 0) (#10)
    by oculus on Fri Apr 24, 2009 at 11:09:20 AM EST
    requesting I update phone GPS so, if 911 is called from my cell phone, responders will be better able to locate.  No mention of other possible use of this information.

    Thanks. Good job. (none / 0) (#1)
    by oculus on Fri Apr 24, 2009 at 09:46:48 AM EST

    Thanks, Oculus (none / 0) (#3)
    by Jeralyn on Fri Apr 24, 2009 at 09:53:30 AM EST
    It's an issue in three of my current wiretap cases right now and I just wrote my first brief on it this past week.

    Heck I wouldn't be shocked (none / 0) (#2)
    by SOS on Fri Apr 24, 2009 at 09:51:20 AM EST
    if every HD TV purchased in this country has some kind of micro miniature listening device embedded in it's internal workings.

    HDTVs do make it easy (none / 0) (#13)
    by shoephone on Fri Apr 24, 2009 at 12:03:15 PM EST
    to track what programs you are watching.

    What it really comes down to is the Old (none / 0) (#4)
    by SOS on Fri Apr 24, 2009 at 09:53:45 AM EST
    American Establishment (same as the new one) is concerned things are really going to erupt in this country at some point in the near future. We are to close for comfort.

    Interesting issue (none / 0) (#5)
    by Steve M on Fri Apr 24, 2009 at 09:59:44 AM EST
    I don't really blame the prosecution for doing their best to try and win a pending case, and I don't know enough about the structure of the DOJ to know whether anyone in Washington would have even had the opportunity to weigh in on the filing of this brief.  But this is a good reminder of why you ought to replace the U.S. Attorneys in a timely fashion at the start of a new administration!

    So, the question is... (none / 0) (#6)
    by Anne on Fri Apr 24, 2009 at 10:11:30 AM EST
    why hasn't he?  Is it a matter of there being so much going on that there hasn't been enough time to assess the situation, and vet nominees, or is it a matter of Obama approving of the job the sitting USA's are doing?

    I would feel better if it were Door #1 - the not-enough-time thing - but I am starting to think it might be Door #2 - he's happy enough with the job they're doing.



    If that's the case (none / 0) (#11)
    by jbindc on Fri Apr 24, 2009 at 11:09:25 AM EST
    then he has no business being POTUS. A POTUS should be able to multitask, especially as he has thousands of people on his staff to do just that.  This issue has been in the forefront of the news since 2007 and they should have had lists (akin to the NFL draft) as soon as they started the campaign, and worked those lists through the transition.  Guess he's still not ready on "Day 100".

    If you got 20 applicants in Western PA (none / 0) (#12)
    by Ben Masel on Fri Apr 24, 2009 at 11:19:43 AM EST
    and just picked at random, you'd still get a huge improvement from Mary Beth Buchanan. Even Reagan's Attorney General (and onetime PA Governor) Richard Thornburg, called on her to resign, and that was when Bush was still President.

    Too much going on? (none / 0) (#15)
    by beefeater on Fri Apr 24, 2009 at 12:37:15 PM EST
    In the old soviet Union people used to give Stalin a pass by saying he didn't realize what his people were doing all the time. it couldn't have been him!

    i think everyone has been wondering that (none / 0) (#7)
    by Bemused on Fri Apr 24, 2009 at 10:39:23 AM EST

      In addition to what I'll call the governance desirability of expediting putting his people in place, political consideratins would seem to me to weigh strongly against delay.

      Obviously, these are jobs a lot of people covet but only one per district can have. The delay causes prolonging of the jockeying and lobbying  by people seeking the positions and will likely prolong the againy, so to speak, of the "losers." the more people have to put themselves out there as wanting the job the tougher it is not to get it both internally and in terms  of feeling others know you went after it and were rejected. A quick decision still creates a winner and losers but I think it would be more tolerable for the losers.

       You also have the interoffice interactions. People (prosecutors perhaps more even than many others)  like certainty. Operating under a lame duck holdover is not ideal. The career people who do the work have to feel somewhat undirected at this time. It's also the case in some districts that certain assistants are among those seeking the appointment, sometimes even more than one in the same office.

      Both in terms of implementing policy from DOJ Main and in terms of  political and management considerations it is hard to understand why the U.S. Attorney appointments appear such a low priority.

      Has even a single person been nominated yet?

    that's "agony" (none / 0) (#8)
    by Bemused on Fri Apr 24, 2009 at 10:40:54 AM EST
    not "againy" --I'm not the best multitasker extant

    This is why I won't get an I-phone (none / 0) (#14)
    by shoephone on Fri Apr 24, 2009 at 12:05:37 PM EST
    or any other "smart phone" -- the GPS. They can track where you are and when. No thank you. I'll stick to my old cell phone which has very few hip features, but does what I need it to.

    any "cell" phone provider (none / 0) (#16)
    by BobTinKY on Fri Apr 24, 2009 at 01:44:35 PM EST
    will of necessity need to know what cell your phone is in to provide service.  GPS can pinpoint your presence even further.

    If you know how cell phone service works I think the reasonableness of expecting privacy as to your general whereabouts when you are using a cell phone is, on the facts if not the law, a tough argument to make.    

    That said, good luck.


    IIRC, only way to have privacy w/ cell phone is to (none / 0) (#26)
    by jawbone on Fri Apr 24, 2009 at 10:50:56 PM EST
    disconnect the battery. Even with the phone turned off, it is still tracked, right? Is it only the newer ones which can also be used as a listening device by the Feds?

    Too bad there isn't a button that can be pushed to ensure privacy...which would disconnect the tracking, evesdropping....


    Continuation of Bush OAG policies (none / 0) (#17)
    by txexspeedy on Fri Apr 24, 2009 at 02:39:23 PM EST
    I don't believe that the Obama admin is in favor or agrees with the overreaching of the Bush administration holdover cases. Although I have nothing to support this other than optimism. I believe that this may be a way of cleaning house and letting the judiciary do its job. In other words, let the Bush policies and arguments stand alone and face judgment. Hopefully the arguments and legal theories will be rejected completely and soundly, by the Judiciary. However, if they are accepted by the Courts then It will be up to Congress to rectify the issue with statute.

    What does "holdover" have to do with it? (none / 0) (#18)
    by Paul in NJ on Fri Apr 24, 2009 at 03:08:51 PM EST
    Jeralyn, you acknowledge that the "Obama DOJ" has taken this position. Boiled down, the first paragraph reads The Obama Justice Department... has taken the position that your whereabouts, as determined from your cell phone through records kept by your cell phone provider, is not protected by the Fourth Amendment.

    IANAL, so perhaps there's some context of which I'm unaware, but I'm curious why you feel the need to focus on Buchanan. Are you suggesting that it's somehow bad that "this Bush-holdover U.S. Attorney who refuses to tender her resignation" is doing as she was instructed? Or is it that she wasn't so instructed -- that she's a rogue who filed the briefs on her own, without direction from her higher-ups? (In which case I'm sure that would have been corrected very quickly, along with terminating her position.)

    If it's not those, are you perhaps suggesting that a hypothetical Obama appointee would have refused to file said briefs if ordered to do so? Seriously -- it's not clear what your point is.

    Well (none / 0) (#19)
    by Steve M on Fri Apr 24, 2009 at 03:28:01 PM EST
    Like I said above, I'm not exactly an authority on the command structure of the DOJ, but a United States Attorney enjoys a large degree of autonomy.  They're not just file clerks who wait patiently for political appointees in Washington to spell out exactly what arguments they ought to make in a brief.

    it's the first case to reach the appeals courts (none / 0) (#20)
    by Jeralyn on Fri Apr 24, 2009 at 03:45:13 PM EST
    Perhaps an Obama appointed U.S. Attorney wouldn't have made a stink about needing to appeal the trial court's ruling. My criticism is both of the Obama DOJ for pursuing the appeal and Buchanan. It's her office that is filing the applications for the cell site locator records without probable cause.

    I highly recommend (none / 0) (#21)
    by Bemused on Fri Apr 24, 2009 at 04:05:04 PM EST
     that all defense attorneys know of the USAM


      which summarizes a great deal of policy and legal positions yhr U.S. Attorneys offices are directed to follow. it can sometimes be very helpful to look at this to help anticipate what your opposition might do and sometimes even make arguments to make them reconsider doing something.

    On this specific point:

    9-2.170  Decision to Appeal and to File Petitions in Appellate Courts  

    Approval Requirements. 28 C.F.R. § 0.20(b) provides that the Solicitor General has the authority to "[d]etermine whether, and to what extent, appeals will be taken by the Government to all appellate courts (including petitions for rehearing en banc and petitions to such courts for the issuance of extraordinary writs)." The following actions must be approved:

    Any appeal of a decision adverse to the government, including an appeal of an order releasing a charged or convicted defendant or a request to seek a stay of a decision adverse to the government.

    A petition for rehearing that suggests rehearing en banc--and any rare appeal in which the government wishes to suggest that it be heard initially en banc. See Fed. R. App. P. 35(c). Although a petition for panel rehearing does not require the approval of the Solicitor General, one should not be filed until the Solicitor General has been given the opportunity to decide whether the case merits en banc review.

    A petition for mandamus or other extraordinary relief.

    In a government appeal, a request that the case be assigned to a different district court judge on remand.

    A request for recusal of a court of appeals judge.

    A petition for certiorari. (NOTE: 28 C.F.R. § 0.20(a) provides that the Solicitor General shall supervise all Supreme Court cases, "including appeals, petitions for and in opposition to certiorari, briefs and arguments, and settlement thereof." Accordingly, in criminal cases, only the Solicitor General petitions for certiorari or responds to petitions for certiorari).


    Okay, fair enough... (none / 0) (#22)
    by Paul in NJ on Fri Apr 24, 2009 at 04:44:56 PM EST
    ...but given what we've seen so far regarding Obama's continuation (and in some cases expansion) of Bush polices WRT civil liberties, it's far from clear that an Obama appointee wouldn't have filed pretty much the same brief.

    The quote came from Tommy (none / 0) (#24)
    by Jeralyn on Fri Apr 24, 2009 at 07:37:30 PM EST
    in a live chat with the Washington Post:

    "Check out the people you're voting for.... "For instance, Joseph Biden comes off as a liberal Democrat, but he's the one who authored the bill that put me in jail. He wrote the law against shipping drug paraphernalia through the mail - which could be anything from a pipe to a clip or cigarette papers."

    TalkLeft covered his case extensively, with action alerts and news. You can read it all here. A good recap is here, in which we noted the threats to charge his wife and son.

    He was sentenced for selling bongs and pipes through the internet. Here's a news article on his sentencing.

    According to [defense lawyer Stanford] Levenson, the deal he struck with the prosecutors allowed them to prosecute Tommy Chong and Chong Glass (effectively shutting it down), in exchange for leaving wife Shelby, who had signed the family's loan checks, and [child] Paris alone. Tommy cooperated with the government and was the first of Operation Pipe Dreams' defendants to plead guilty. But while the feds told Levenson they were not necessarily seeking jail time, their legal body language said otherwise.

    when you buy something on the internet (none / 0) (#25)
    by Jeralyn on Fri Apr 24, 2009 at 07:41:42 PM EST
    it's shipped to you. He pleaded guilty to conspiracy to distribute drug paraphernalia. It was sold through the website.