Obama attorneys argue for warrantless cell phone tracking

This is not change that privacy advocates can believe in.

A US appeals court began weighing Friday whether police should be allowed to track citizens through their cellphones without first obtaining a warrant.

The case "could prove to be one of the most important privacy rights battles of the modern era," The Legal Intelligencer noted.

Adopting a Bush-era argument, Obama administration attorneys asked the court to allow telecoms companies to hand over their subscribers' location information, even without a probable cause warrant.

But privacy and human rights groups, including the Electronic Frontier Foundation (EFF) and the American Civil Liberties Union (ACLU) say the process is invasive and violates individuals' privacy and Fourth Amendment rights, which safeguard against illegal search and seizure.

Courts have previously ruled against the government in this arena.

In February 2008, a court in Pittsburgh, Pennsylvania said police must be able to show probable cause before they can obtain cellphone tracking information.

The government appealed that ruling before a federal appeals court in Philadelphia and the case has attracted congressional attention, with senior Democratic Senator Patrick Leahy pledging to hold hearings on the issue.

In a statement, he acknowledged that legislation regulating how law enforcement authorities can monitor citizens are "woefully outdated."

"Congress must work with the Justice Department, privacy advocates and the technology industry to update and clarify the law to reflect the realities of our times," he said.

Meanwhile, modern cellular communications networks have enabled police to track suspects through back-end APIs, showing real time Global Positioning System (GPS) data on demand and over the Internet. Sprint, the nation's third largest carrier, said recently that it has received over 8 million tracking requests from law enforcement officials. The company employs a team of 110 people to handle law enforcement requests on its roughly 47 million customers.

Sprint spokesman Matt Sullivan noted after the revelations that "every wireless carrier has a team and a system' through which police can access GPS data."

"An individual has no Fourth Amendment-protected privacy interest in business records, such as cell-site usage information, that are kept, maintained and used by a cell phone company," Obama administration attorney Eckenwiler argued in his legal brief.

Kevin Bankston, an EFF attorney, called on Philadelphia's 3rd Circuit Court of Appeals to uphold the 2008 ruling rejecting the government's push to expand the practice sans warrant.

"If the courts do side with the government, that means that everywhere we go, in the real world and online, will be an open book to the government unprotected by the Fourth Amendment," he warned in an interview with CNET.com.

"What’s at stake in the case is not whether it’s OK for the government to track the locations of cell phones; we agree that cell-phone tracking is lawful and appropriate in certain situations," the ACLU's Catherine Crump argued in a Philadelphia Inquirer editorial. "The question is whether the government should first have to show that it has good reason to think such tracking will turn up evidence of a crime.

"We believe it should. This case is not about protecting criminals. It’s about protecting innocent people from unjustified violations of their privacy."

"Make no mistake, our freedom is being challenged," The Des Moines Register opined. "This tracking data would allow the government to determine what church you attend, what meetings you go to, where you buy your groceries and who your friends are. The government has no right and little constructive need to have free and open access to this information.

GPS location tracking is already estimated to outnumber all other forms of electronic surveillance.

Read the EFF's argument against warrantless cell phone tracking here (PDF link). The government's response is available here (PDF link).

With AFP