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Federal court blocks Obama Administration attempt to spy on cell phones without a warrant

By John Byrne
Thursday, December 16, 2010 8:44 EDT
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The Obama Administration’s effort to obtain your location from cell phone towers without a warrant was rebuffed Wednesday by a federal court.

The 3rd Circuit Court of Appeals ruled Wednesday that the Justice Department cannot obtain information about which cell phone towers mobile phones communicate with without a warrant.

The decision was first reported by Wired’s David Kravets, and has received almost no coverage in the press. The Obama Administration is seeking to reverse an earlier ruling giving judges the authority to require a warrant for the government to obtain cell phone tracking data.

In October, Obama Assistant Attorney General Lanny Breuer filed a brief seeking the power to obtain cell phone location data without a warrant, arguing that it was essentially communication made in a public place.

Referencing a 1979 case, Smith vs. Maryland, the Assistant Attorney General wrote that because telephone callers cannot expect privacy in the numbers they dial, they can’t expect privacy in the locations of towers their cell phones interact with.

“In Smith, the Supreme Court held both that telephone users have no subjective expectation of privacy in dialed telephone numbers and also that any such expectation is not one that society is prepared to recognize as reasonable,” Breuer wrote, along with several other officials. “The Court’s reasoning applies equally to cell-site information. The Court stated: “we doubt that people in general entertain any actual expectation of privacy in the numbers they dial. All telephone users realize that they must ‘convey’ phone numbers to the telephone company, since it is through telephone company switching equipment that their calls are completed.” Similarly, cell phone users understand they must convey a signal to a cell phone tower before their call may be completed.” (p. 12 – pdf)

The brief was co-written by US Attorney David Hickton, Assistant US Attorney Robert Eberhardt, and and Associate Director of the US Justice Department’s Office of Enforcement Operations.

Wired‘s David Kravets noted that the decision to bar law enforcement from routine collection of cell-site data comes in a broader context of rulings favoring electronic privacy.

“The decision by the 3rd U.S. Circuit Court of Appeals is one in a string of court decisions boosting Americans’ privacy in the digital age — rulings the government fought against,” Kravets penned Wednesday. “The most significant and recent decision came Tuesday, when a different federal appeals court said for the first time the government must obtain a court warrant for an internet service provider to grant the authorities access to a suspect’s e-mail.”

“The case that concluded Wednesday concerns historical cell-site location information, which carriers usually retain for about 18 months,” Kravets added. “The data identifies the cell tower the customer was connected to at the beginning of a call and at the end of the call — and is often used in criminal prosecutions and investigations.”

In September, the appeals court ruled that judges should have the power to require warrants for the government to obtain cell-site information. The Obama Administration appealed that decision, and the ruling Wednesday rebuffed their efforts.

Earlier this month, Law.com provided a description of how law enforcement can use cell-site information in investigations.

…Cell phone records can track the movements of the person or persons in possession of a cell phone that has been activated, even when no one is making a call on the phone, that the tracking can be quite granular, within 146 feet, or 50 meters, and, in many cases, within 40 feet, and that the increase in cell phone towers and improvements in technology will continue to make tracking even more granular. Telephones equipped with Global Positioning System applications can be tracked by GPS satellites that orbit the earth and whose purpose is to track all GPS targets.

Though not all phones are equipped with GPS capabilities, all cell phones can be tracked through network-based tracking.

Cell phones are supported by a network of cell towers that relay messages from the caller through the carrier to the recipient. There are hundreds of thousands of cell phone towers in the United States. Activated cell phones are in constant contact with cell phone towers, keeping contact with the closest one as the cell phone moves across space so that if and when a call comes in or goes out it will do so instantly.

By tracking the “hops” a cell phone makes from cell phone tower to tower, law enforcement can track the movements of that phone — and, ostensibly, its owner — for as long as the records are kept by the carrier.

Kravets, at Wired, noted that the Obama Administration is also seeking permission to affix GPS devices to vehicles without a court warrant.

“The administration has also asked the U.S. Court of Appeals for the District of Columbia Circuit to reverse its August ruling requiring court warrants to affix GPS devices to vehicles to track their every move,” he wrote. “The administration said Americans should expect no privacy ‘in the totality of his or her movements in public places.’”

“The appellate court’s answer is pending,” he added.

 
 
 
 
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