Obama DOJ Supports Warrantless Wireless Location Searches

The Obama administration is opposing efforts to stop government attempts to gain access to users' cell phone locations without a warrant. Carrying on a legal theme from the Bush administration, the Department of Justice contends that the Fourth Amendment prohibition against unreasonable searches and seizures does not apply to cell tower locations.

In September 2008, a federal court ruled that location information stored by a mobile phone provider is legally protected. The court said a judge can and should require law enforcement to show probable cause in order to access the stored data. The government has appealed the decision.

"Because wireless carriers regularly generate and retain the records at issue, and because these records provide only a very general indication of a user's whereabouts at certain times in the past, the requested cell site records do not implicate a Fourth Amendment privacy interest," the Department of Justice wrote in its appeal. (PDF)

The government's attempt to gain access to location data without a search warrant first came to light in 2005 when Magistrate Judge James Orenstein of the Eastern District of New York publicly ruled that the Department of Justice needed a search warrant to track a suspect's cell phone movement in a drug-related case. Orenstein revealed that the government has been routinely using a baseless legal argument to get secret authorizations from a number of courts.

"Although historical cell tower records provide limited information, that information is useful to law enforcement because it provides a general indication of where a cell phone call was made," the DOJ appeal stated. "No global positioning system data or other more precise location information (such as 'triangulation' data) is contained in the historical records ... Indeed, cell site records do not even indicate a phone's distance from the serving tower, let alone its specific location."

In a March 17 friend of the court filing, the EFF (Electronic Frontier Foundation) sharply disagreed with the Department of Justice.

"The government argues that federal law requires judges to approve their applications for location information from cell phone companies-even if the police don't have probable cause to obtain this sensitive information," EFF Civil Liberties Director Jennifer Granick said in a statement. "Courts have the right under statute-and the duty under the Constitution-to demand that the government obtain a search warrant before seizing this private location data."

As a senator, Obama infuriated civil libertarians when he voted July 9 to grant retroactive immunity to telephone companies that participated in the Bush administration's warrantless domestic spying program. The bill, which became law, essentially provides the telcos legal protection from more than 40 civil lawsuits claiming the carriers provided the government with customer telephone and e-mail records of millions of U.S. citizens-often without a warrant or subpoena.

The telcos contended that they relied on existing federal, state and local laws and assurances from the highest level of government when providing access to consumers' personal telephone calls and e-mail without a subpoena.