Court gives prosecutors leeway in seeking cell data
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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.
First Published September 9, 2010 12:00 am
