Police blotter: Cell phone tracking rejected

Two federal judges join a growing number of courts that are rejecting police demands to be able to track Americans without first getting a warrant.

Declan McCullagh Former Senior Writer
Declan McCullagh is the chief political correspondent for CNET. You can e-mail him or follow him on Twitter as declanm. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site.
Declan McCullagh
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"Police blotter" is a weekly report on the intersection of technology and the law.

What: Invoking the Patriot Act and other surveillance laws, the Feds try to track the location of a cell phone without providing any evidence of criminal activity.

When: Decided Feb. 27 by Magistrate Judge James Bredar in Maryland; and Feb. 28 by Magistrate Judge Andrew Peck in New York.

Cell phone surveillance

In a string of cases that was first reported by CNET News.com, federal judges have wrestled with whether to permit warrantless tracking of the location of cell phones. Some of the representative cases from last year:

Aug. 25, 2005: Judge James Orenstein denies surveillance request

Oct. 14, 2005: Judge Stephen Smith denies surveillance request.

Dec. 20, 2005: Judge Gabriel Gorenstein approves surveillance request.

Outcome: The Justice Department's surveillance requests were denied in both cases.

What happened, according to the court: Cell phones are miniature radio transmitters that constantly broadcast their location even when no call is in progress.

The FBI and other police agencies often seek access to that location-tracking information, which can reveal the cell phone owner's movements. But only in the last few months have judges begun to scrutinize what have traditionally been routine tracking requests-- that scrutiny was first reported by Police Blotter in September--and concluding that police must show at least some evidence of actual criminal activity.

In the Maryland case, the Justice Department sought an order on Jan. 27 seeking "cell site information concerning the physical location of antenna towers associated with the beginning and termination of calls to and from the subject cellular telephone." This was less detailed information than an earlier request before the same court that was rejected (the revised request would not have permitted triangulation to pinpoint a location).

Judge Bredar acknowledged that the revised request was "less intrusive to privacy" than the earlier one, but nevertheless rejected it on the grounds that Congress had not authorized location-tracking without evidence of wrongdoing.

In the New York case, the Drug Enforcement Administration had requested that similar information be transmitted to it automatically at the beginning and end of each call.

Judge Peck also rejected the request, saying that if the Bush administration wants live tracking information without evidence of wrongdoing--that is, probable cause--"it needs to ask Congress to explicitly grant it such authority."

Excerpt from Judge Peck's opinion (the parenthetical remarks appear in the original): "The Court need not reinvent the wheel nor write at length, but merely states that the Court agrees with these prior decisions that have rejected the government's 'hybrid' statutory interpretation theory, i.e., that it can combine the Pen Register statute, the Communication Assistance for Law Enforcement Act of 1994, and the Stored Communications Act to obtain prospective cell site location information...

"The Court also notes that while the government's request for cell site location information in this district has been limited to general tower location (not triangulation information that can more precisely give the cell phone's location) and only for the origination and termination of calls, the government's statutory interpretation would allow it to obtain triangulation location information for the entire duration of the call and, indeed, for all times the cell phone is on, even when no call is in progress.

"The government candidly admitted in oral argument before Magistrate Judge Feldman in the Western District of New York that the only reason it was not currently seeking the triangulation location information for the entire time a cell phone is on (or for call duration) is because of judicial opposition (e.g., Magistrate Judge Orenstein's early opinion).

"If the Department of Justice needs to obtain prospective cell site location information in criminal investigations, it needs to ask Congress to explicitly grant it such authority."