Catching up on cell phone location tracking law

The original appearance of this entry was in Danny Weitzner - Open Internet Policy

Catching up on my reading after a busy few months, I’ve been looking through 3 recent opinions from US Magistrate Judges (the folks who generally have the first pass on government requests for court orders for wiretaps and other types of electronic surveillance). Since the middle of October, Federal courts in
Maryland (05-4486), Texas(H-05-557M), and New York (M 05-1093 (JO)) have rejected government requests to get real time cell phone location tracking information because the government, so far, has not been willing to meet the the Fourth Amendment ‘probable cause’ standard for justifying this intrusion.

The key legal issue in all of these cases is what level of judicial oversight is required to compel the disclosure of information sought by the government. Answering this question has turned on whether the data sought is “transactional information generated by the mobile phone network (in which case it would be regulated under
18 USC 2703 sections (b) and (d)) or that it is equivalent to a mobile tracking device regulated under 18 USC 3117? If it is transactional data then it is available to the government under a so-called intermediate standard, less than probably cause, but more than a simple request. Under this rule, the government has to give a clear and articulable reason which the data is relevant to an ongoing investigation. It can’t just be going on a fishing expedition. Though the government advocated this position is all three cases, all three courts found that there must be a showing of probable cause. (This is all personally pretty interesting to me because I did a lot of work advocating for this new protection for transactional data back in 1994. At the time we (and I believe the Congress) was thinking about transacational information such as email and web access logs. We were not thinking about real time location data. My guess is that Congress will have to come back to this question to settle it.

Kudos to EFF (where I’m proud to say I once worked) for for filing an amicus curiae brief in the New York case and for bringing attention to this issue.

Added 22 December 2005: See this update