Federal Court Blocks Obama Administration Attempt To Spy On Cell Phones Without A Warrant
19 December 2010By John Byrne
The Obama Administration's effort to obtain your
location from cell phone towers without a warrant was
rebuffed Wednesday by a federal court.
The 3rd Circuit Court of Appeals ruled Wednesday that
the Justice Department cannot obtain information about
which cell phone towers mobile phones communicate with
without a warrant.
The decision was first reported by Wired's David
Kravets, and has received almost no coverage in the
press. The Obama Administration is seeking to reverse
an earlier ruling giving judges the authority to
require a warrant for the government to obtain cell
phone tracking data.
In October, Obama Assistant Attorney General Lanny
Breuer filed a brief seeking the power to obtain cell
phone location data without a warrant, arguing that it
was essentially communication made in a public place.
Referencing a 1979 case, Smith vs. Maryland, the
Assistant Attorney General wrote that because
telephone callers cannot expect privacy in the numbers
they dial, they can't expect privacy in the locations
of towers their cell phones interact with.
"In Smith, the Supreme Court held both that telephone
users have no subjective expectation of privacy in
dialed telephone numbers and also that any such
expectation is not one that society is prepared to
recognize as reasonable," Breuer wrote, along with
several other officials. "The Court's reasoning
applies equally to cell-site information. The Court
stated: "we doubt that people in general entertain any
actual expectation of privacy in the numbers they
dial. All telephone users realize that they must
'convey' phone numbers to the telephone company, since
it is through telephone company switching equipment
that their calls are completed." Similarly, cell phone
users understand they must convey a signal to a cell
phone tower before their call may be completed." (p.
12 - pdf)
The brief was co-written by US Attorney David Hickton,
Assistant US Attorney Robert Eberhardt, and and
Associate Director of the US Justice Department's
Office of Enforcement Operations.
Wired's David Kravets noted that the decision to bar
law enforcement from routine collection of cell-site
data comes in a broader context of rulings favoring
electronic privacy.
"The decision by the 3rd U.S. Circuit Court of Appeals
is one in a string of court decisions boosting
Americans' privacy in the digital age — rulings the
government fought against," Kravets penned Wednesday.
"The most significant and recent decision came
Tuesday, when a different federal appeals court said
for the first time the government must obtain a court
warrant for an internet service provider to grant the
authorities access to a suspect's e-mail."
"The case that concluded Wednesday concerns historical
cell-site location information, which carriers usually
retain for about 18 months," Kravets added. "The data
identifies the cell tower the customer was connected
to at the beginning of a call and at the end of the
call — and is often used in criminal prosecutions and
investigations."
In September, the appeals court ruled that judges
should have the power to require warrants for the
government to obtain cell-site information. The Obama
Administration appealed that decision, and the ruling
Wednesday rebuffed their efforts.
Earlier this month, Law.com provided a description of
how law enforcement can use cell-site information in
investigations.
...Cell phone records can track the movements of the
person or persons in possession of a cell phone that
has been activated, even when no one is making a call
on the phone, that the tracking can be quite granular,
within 146 feet, or 50 meters, and, in many cases,
within 40 feet, and that the increase in cell phone
towers and improvements in technology will continue to
make tracking even more granular. Telephones equipped
with Global Positioning System applications can be
tracked by GPS satellites that orbit the earth and
whose purpose is to track all GPS targets.
Though not all phones are equipped with GPS
capabilities, all cell phones can be tracked through
network-based tracking.
Cell phones are supported by a network of cell towers
that relay messages from the caller through the
carrier to the recipient. There are hundreds of
thousands of cell phone towers in the United States.
Activated cell phones are in constant contact with
cell phone towers, keeping contact with the closest
one as the cell phone moves across space so that if
and when a call comes in or goes out it will do so
instantly.
By tracking the "hops" a cell phone makes from cell
phone tower to tower, law enforcement can track the
movements of that phone -- and, ostensibly, its owner
-- for as long as the records are kept by the carrier.
Kravets, at Wired, noted that the Obama Administration
is also seeking permission to affix GPS devices to
vehicles without a court warrant.
"The administration has also asked the U.S. Court of
Appeals for the District of Columbia Circuit to
reverse its August ruling requiring court warrants to
affix GPS devices to vehicles to track their every
move," he wrote. "The administration said Americans
should expect no privacy 'in the totality of his or
her movements in public places.'"
"The appellate court's answer is pending," he added.
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