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Police blotter: Cell phone tracking rejected

Judge says Patriot Act doesn't let feds snoop on someone's cell phone location without some evidence of criminal activity.

"Police blotter" is a weekly report on the intersection of technology and the law. This episode: Feds' location-tracking rebuffed.

What: In the first case of its kind, a federal judge chastises the U.S. Department of Justice for trying to constantly track a cell phone user's location without providing any proof of criminal behavior.

When: Decided Aug. 25 by U.S. Magistrate Judge James Orenstein in Central Islip, N.Y.

Outcome: Justice Department's Patriot Act surveillance request was denied.

What happened: Burton T. Ryan Jr., an assistant U.S. attorney, sought a court order that would permit federal agents to track a suspect though his cell phone--but he couldn't offer any evidence of actual criminal activity.

Ryan asked Orenstein to sign an order requiring the unnamed cellular provider to divulge the information, which would reveal the suspect's location whenever his cell phone was in use. (Cell phones must provide this information because of potential 911 emergencies, the Federal Communications Commission has ruled.)

Such location-tracking was permitted under the 2001 Patriot Act, which amended the definition of a "pen register," Ryan argued. A pen register records phone numbers that are dialed.

Orenstein disagreed. Location information amounts to a wiretap, he said, and therefore requires prosecutors to show "probable cause"--that is, at least some evidence of criminal behavior. Such an order "would effectively allow the installation of a tracking device without the showing of probable cause normally required for a warrant."

Citing congressional testimony by former FBI Director Louis Freeh, Orenstein rejected the request and told the Justice Department to appeal if it wanted further clarification. Freeh had assured Congress that "the authority for pen registers and trap and trace devices cannot be used to obtain tracking or location information."

Excerpt from Orenstein's opinion: "My research on this question has failed to reveal any federal case law directly on point. Moreover, it is my understanding based on anecdotal information that magistrate judges in other jurisdictions are being confronted with the same issue but have not yet achieved consensus on how to resolve it. If the government intends to continue seeking authority to obtain cell site location information in aid of its criminal investigations, I urge it to seek appropriate review of this order so that magistrate judges will have more authoritative guidance in determining whether controlling law permits such relief on the basis of the relaxed standard set forth (under federal law), or instead requires adherence to the more exacting standard of probable cause.