Ruling eases government’s efforts for cell phone tracking

Probable cause isn’t necessary for the government to obtain a warrant allowing it to use a person’s cell phone to track past movements, the result of a court ruling in Massachusetts. According to the ruling by the U.S. District Court in Massachusetts, law enforcement officials only need to show the information is “relevant to an ongoing investigation.”

The decision stems from an appeal by the government of a magistrate judge’s ruling that required members of law enforcement to show probable cause before they could be issued a warrant to gain access to an individual’s past movements from cell phone providers.

Cell phone companies can track a customer’s movements by identifying the cell tower or towers through which his calls were handled. The case is sealed because it is part of an ongoing criminal investigation.

The government wanted to obtain a court order requiring certain carriers to turn over information about a customer’s cellular telephone records. While the magistrate judge allowed the government access to the customer’s subscriber information, the judge rejected the government’s bid to gain access to the customer’s historical cell site information (or where the customer was).

The magistrate judge rebuffed the government’s argument that it only needed to present “specific and articulable facts” to show the relevance of information to a criminal investigation.

According to court documents, the issue before the district court judge was whether obtaining a warrant for historical cell information should be treated like obtaining a warrant for real-time cell information (where the customer is), which most courts have ruled requires probable cause, in part because under the Fourth Amendment to the Constitution, citizens have a reasonable expectation of privacy.

The district court judge decided that under the federal Stored Communications Act, the government could obtain a warrant for historical cell data by showing that data was relevant to an ongoing investigation. In addition, the district court ruled that an individual’s past movements were not protected under the Fourth Amendment because the government wasn’t looking to track the individual’s real-time or future movements.

U.S. Attorney Stephen Heymann said he couldn’t discuss the original case that was before the magistrate judge because it is under seal as part of an ongoing criminal investigation.

“This is the first decision that’s been about historical tracking,” said Jennifer Granick, civil liberties director at the Electronic Frontier Foundation, a privacy advocacy group in Washington.

“The idea is that the government is using this information, that most people don’t know their cell phone transmits, in order to track you, and they are arguing for an extremely low standard under this complicated statutory regime,” Granick said.

“Most people probably consider this information to be very private – where you travel and where you’ve been. So the concern is for something so invasive, the government should have to demonstrate that it’s information that they really need.”

Related content:

Opinion: The hazards of GPS tracking

Spotlight on Industry Minister Maxime Bernier

Feds want deregulated local phone services now

CRTC deserts cell phone and Internet users

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