Courts May Require Search Warrants for Cell Phone 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 location.

“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.