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Police blotter: Feds' cell phone tracking denied

Police must show some evidence of actual criminal activity before tracking cell phone users' location, judges conclude.

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

What: Police blotter was the first to report last month that a federal judge had blocked a Justice Department's eavesdropping request. Since then, two subsequent court decisions also have rejected police surveillance procedures aimed at monitoring the location of cell phone users.

When: U.S. Magistrate Judge James Orenstein in Central Islip, N.Y., ruled on Oct. 24; and U.S. Magistrate Judge Stephen Smith in Houston, Texas, ruled on Oct. 14.

Outcome: The Justice Department's Patriot Act surveillance request to track cell phone users' location was denied.

What happened: 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 displays the cell phone owner's movements in real time. But only now are judges beginning to scrutinize what have traditionally been routine tracking requests--and concluding that police must show at least some evidence of actual criminal activity.

The government's request for location-tracking before Smith discussed this triangulation technique: "Also sought is information regarding the strength, angle and timing of the caller's signal measured at two or more cell sites, as well as other system information such as a listing of all cell towers in the market area, switching technology, protocols and network architecture."

Smith said that if police could show actual evidence of wrongdoing (that is, probable cause), such surveillance was "unquestionably available."

But until that happened, he ruled, "permitting surreptitious conversion of a cell phone into a tracking device without probable cause raises serious Fourth Amendment concerns, especially when the phone is monitored in the home or other places where privacy is reasonably expected. "

Orenstein reached a similar conclusion, saying that the Bush administration's request "invites an exercise of judicial activism that is breathtaking in its scope." He also predicted that the Justice Department may "decide to conduct the monitoring without a warrant" and, if so, does so "at its peril" if a court later deems it unlawful.

The Justice Department has the option to appeal--and given its usual policy, could very likely choose to appeal--these decisions.

Excerpt from Smith's opinion:: "As we have seen, a cell phone can readily be converted by law enforcement to function as a tracking device, employing much the same technology as the modern beeper or transponder. Under the government's theory, law enforcement could simply install cell phones in place of the beepers currently underneath vehicles and inside drum barrels, and eliminate forever the need to obtain a Rule 41 search warrant for tracking surveillance."