Court gives prosecutors leeway in seeking cell data

Judges, however, can use discretion

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The 3rd U.S. Circuit Court of Appeals on Tuesday ruled that federal law does not require prosecutors to show probable cause when they seek tracking data collected by cell phone providers. But the court said that judges can ask for it nonetheless.

The opinion doesn't spell out any standards for judges to follow when probable cause might be necessary, nor provide the clarity those concerned about privacy issues had sought.

"This opinion gives discretion to lower courts but not clear guidance," said Susan Freiwald, a law professor at the University of San Francisco who argued the case.

Under the Stored Communications Act, the government can seek historical cell tower data by providing "specific and articulable facts showing ... the records sought ... are relevant and material to an ongoing criminal investigation."

It is a less-rigorous standard than requiring a warrant with probable cause.

The case began in the Western District of Pennsylvania in 2007, when the U.S. attorney's office sought data from an individual's cell phone provider to be used in a criminal drug investigation.

The records requested, which track the towers and site locations used by the phone subscriber, can track where a person was in the past when making and receiving calls. In urban areas, a person's whereabouts can be tracked to within 200 feet of the exact location.

Civil liberties advocates, who joined in the case with friend-of-the-court briefs, argued that prosecutors were required to show probable cause and get a warrant to obtain the records because the data calls into question an individual's right to privacy under the Fourth Amendment, which provides protection against unreasonable searches.

However, the government claimed a warrant was not necessary because the records provide only a general location for a user's whereabouts, and therefore there is no privacy interest requiring a showing of probable cause.

U.S. Magistrate Judge Lisa Pupo Lenihan wrote a 52-page opinion in February 2008 finding that the government had to provide probable cause and obtain a warrant to get the records. U.S. District Judge Terrence F. McVerry affirmed the decision, but prosecutors appealed to the Third Circuit.

In the 32-page appellate decision, the three-judge panel would not go so far as to say probable cause is always necessary, but it also wouldn't say that there is never a privacy right.

That language -- allowing that the Fourth Amendment can apply in some situations -- provided a victory for a number of organizations that signed on in friend-of-the-court briefs opposing the government's position, including the Electronic Frontier Foundation and the ACLU.

"It provides discretion to the lower courts to push back on requests by the government when judges feel the data implicates the Fourth Amendment," said Ms. Freiwald, who argued with attorneys from the Electronic Frontier Foundation.

She told the court that it should find that probable cause always applies when the government seeks cell phone tracking data because the subscriber's privacy rights are always implicated.

"The court wasn't ready to go that far," she said.

Professor Orin Kerr, from George Washington University School of Law, called parts of the Third Circuit opinion "murky," and "fuzzy," in a blog entry he posted Wednesday at The Volokh Conspiracy.

He cites part of the court's decision, in which Judge Dolores K. Sloviter, writing for the majority, said that requiring warrants for the records should be an option that is used "sparingly."

However, if a magistrate judge determines a warrant is required, the judge must make findings of fact and "give a full explanation that balances the government's need (not merely desire) for the information with the privacy interests of cell phone users."

Even the concurring opinion in the case says that the majority's opinion contradicts itself.

"I do not believe that these contradictory signals give either magistrate judges or prosecutors any standards by which to judge whether an application for [an] order is or is not legally sufficient," wrote Judge A Wallace Tashima, who sat on the Third Circuit panel.

He went on to say that the opinion vests judges with arbitrary discretion as to whether to grant or deny orders on the issue "at the whim of the magistrate even when the conditions of the statute are met."


Paula Reed Ward: pward@post-gazette.com or 412-263-2620.


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