Justice Dept. loses round in warrantless phone tracking

The U.S. Court of Appeals for the D.C. Circuit says the Justice Department must turn over names and docket numbers on cases it allegedly tracked users without a warrant.

Don Reisinger
Former CNET contributor Don Reisinger is a technology columnist who has covered everything from HDTVs to computers to Flowbee Haircut Systems. Besides his work with CNET, Don's work has been featured in a variety of other publications including PC World and a host of Ziff-Davis publications.
Don Reisinger
3 min read

The American Civil Liberties Union is touting its victory in a case against the Department of Justice over alleged mobile phone tracking.

According to the group, the U.S. Court of Appeals for the D.C. Circuit ordered the Justice Department to hand over names and case docket numbers in cases where it "accessed cell phone location data without a warrant."

"Today's decision is a significant victory in the fight against warrantless tracking of Americans by their government," the ACLU wrote on its site yesterday following the court's decision. "There is no good reason for DOJ to keep this case information secret, except to keep the American people in the dark about what its own government is doing and stifle debate about the new tracking powers the government is claiming."

The ACLU first took aim at the Department of Justice in 2007. At the time, the civil liberties group asked the government to provide information on the "policies and procedures" it uses when it accesses mobile phone data. After the government failed to provide all that the ACLU was looking for, the group filed suit--along with the Electronic Frontier Foundation--against the Justice Department.

Related stories:
ACLU: FBI used 'dragnet'-style warrantless cell tracking
Justice Dept. defends warrantless cell phone tracking
ACLU: You're being watched

Yesterday's victory marks the second time the ACLU has come out on top against the Justice Department. The group previously won the case in the U.S. District Court, but the government appealed that ruling to the U.S. Court of Appeals.

In arguments before the Third Circuit Court of Appeals last year, Justice Department senior attorney Mark Eckenwiler argued that law enforcement officials have "no constitutional bar" to contend with when obtaining "routine business records held by a communications service provider." He went on to say that the "government is not required to use a warrant when it uses a tracking device."

Concern over government tracking of gadgetry, including mobile phones, has been present at the ACLU for several years. In 2003, the group released a study, called "Bigger Monster, Weaker Chains: The Growth of an American Surveillance Society." In that study, the ACLU documented ways in which the U.S. government was using technology in the hands of citizens to allegedly track their movements.

"The explosion of computers, cameras, sensors, wireless communications, GPS (Global Positioning System) biometrics and other technologies in just the last 10 years is feeding a surveillance monster that is growing silently in our midst," the group wrote.

The ACLU has also chimed in on other cases related to warrantless mobile phone tracking. Last year, the group issued its support for a component in the defense of two men accused of robbing banks in Connecticut. According to court documents, the Justice Department did not obtain a warrant to access mobile phone data from the defendants, thus making the information gathered from that effort potentially inadmissible in court.

"Because cell site location information implicates an expectation of privacy that society is prepared to recognize as reasonable, the Fourth Amendment requires that the government obtain a warrant based on probable cause prior to collecting this information," the ACLU said last year in its friend-of-the-court brief.

In its own case, the ACLU expects the Department of Justice to hand over the tracking information now that the Appeals court has ruled in its favor. However, the Justice Department could still petition the Supreme Court to hear its case.

The U.S. Justice Department did not immediately respond to CNET's request for comment on how it will respond to the Appeals Court's ruling.