The Third Circuit Court of Appeals in Philadelphia rules law enforcement officials may need a probable cause warrant to collect cell phone location records.
The Third Circuit Court of Appeals in Philadelphia ruled on appeal
that federal law allows judges the discretion to require that the
government obtain a probable cause search warrant before they attempt
to access location data on a cellular phone. However, the ruling does
say a warrant is required under all circumstances. The ruling was
declared a victory for location privacy advocates, including the
EFF (Electronic Frontier Foundation) and the Center for Democracy and
Technology and the ACLU (American Civil Liberties Union), which all
filed a friend-of-the-court brief in the case.
The letter charged federal law grants judges the discretion to require
the government to obtain a warrant based on probable cause before
accessing historical cell phone records, and that cell phone users do
not give up their expectation of privacy just because third party cell
phone companies have access to their location information.
"Today's ruling sends a message that merely carrying a cell phone
should not make people more susceptible to government surveillance.
Innocent Americans should not be made to feel the government is
following them wherever they go - including in their own home," said
Catherine Crump, a staff attorney with the ACLU Speech, Privacy and
Technology Project. "While there's no question that law enforcement
agents should have the tools they need to stop crimes, such tools must
be used in a manner that upholds the Constitution and personal privacy."
EFF senior staff attorney Kevin Bankston, who specializes in free
speech and privacy law, said the appeals court has remanded the case
back to the original magistrate judge that initially denied the
government's request to obtain cell phone location data without
probable cause, asking the lower court to shore up its original
decision with new fact-finding into the government's need for the
requested data and the precision of that data in identifying a person's
"Although the court did not definitively rule on the Fourth Amendment
status of cell phone location information, it made clear that under
some circumstances the privacy of such data could be constitutionally
protected, and that judges have the discretion to require a warrant to
avoid potentially unconstitutional seizures of location data," he wrote on the EFF's Web blog.
The court noted the growth of electronic communications has stimulated
Congress to enact statutes that provide both access to information not
earlier unavailable to law enforcement institutions and at the same
time protect users from unwarranted intrusion. "I would cabin the
magistrate's discretion by holding that the magistrate may refuse to
issue the Stored Communications Act here only if she finds that the
government failed to present specific and articulable facts sufficient
to meet the standard underor, alternatively, finds that the order would
violate the Fourth Amendment absent a showing of probable cause because
it allows police access to information which reveals a cell phone
user's location within the interior or curtilage of his home," Circuit
Judge Dolores Sloviter wrote in the court ruling.
In the opinion that was joined by Judge Jane R. Roth and partly joined
by visiting 9th Circuit Judge A. Wallace Tashima, Sloviter noted
because the statute as presently written gives the magistrate judge the
option to require a warrant showing probable cause, we are unwilling to
remove that option although it is an option to be used sparingly.
Nathan Eddy is Associate Editor, Midmarket, at eWEEK.com. Before joining eWEEK.com, Nate was a writer with ChannelWeb and he served as an editor at FierceMarkets. He is a graduate of the Medill School of Journalism at Northwestern University.