A federal judge in Brooklyn ruled Monday that the federal government must establish probable cause and secure a warrant before obtaining records about a cell phone user’s location, saying it violated the Fourth Amendment’s protections against unreasonable searches, according to the New York Law Journal.
“While the government’s monitoring of our thoughts may be the archetypical Orwellian intrusion, the government’s surveillance of our movements of a considerable time period through new technologies, such as the collection of cell-site-location records, without the protections of the Fourth Amendment, puts our country far closer to Oceania than our Constitution permits,” Eastern District Judge Nicholas G. Garaufis wrote (PDF).
The decision came after the U.S. Attorney’s office sought to obtain 113 days of cell phone location data from Verizon Wireless under the Stored Communications Act. The measure allows law enforcement to obtain records from electronic communication services without a warrant if the records are “relevant and material to an ongoing criminal investigation.”
The Eastern District U.S. Attorney’s Office was seeking the cell phone location data of Kamal Abdallah, who was under indictment in a criminal case.
Cell phones continuously transmit data to cell-sites scattered across the nation. The cell-sites are operated by cell phone service providers, who keep records of the cell phone’s geolocational data.
The government contended that cell phone users have no expectation of privacy concerning the locational data stored by cell phone companies because the data is voluntarily transmitted to a third party and does not include the content of cell phone calls. But Garaufis rejected that line of reasoning.
“Cellular service providers have records of the geographic location of almost every American at almost every time of day and night,” he explained. “And under current statutes and law enforcement practices, these records can be obtained without a search warrant and its requisite showing of probable cause.”
“What does this mean for ordinary Americans? That at all times, our physical movements are being monitored and recorded, and once the Government can make a showing of less-than probable cause, it may obtain these records of our movements, study the map our lives, and learn the many things we reveal about ourselves through our physical presence.”
Garaufis ruled that the government trying to obtain the location records of cell phone users constituted a Fourth Amendment search, noting the decision in United States v. Maynard. The case held the government monitoring of a suspect’s car by the use of a GPS tracking device was a Fourth Amendment search and required a warrant.
“In light of drastic developments in technology, the Fourth Amendment doctrine must evolve to preserve cell-phone user’s reasonable expectation of privacy in cumulative cell-site-location records,” he said.
Eric W. Dolan
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