Probable cause necessary to obtain cell data
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The government must show probable cause that a crime has occurred in order to obtain a suspect's cell phone records, a federal judge ruled here this week.
The ruling by U.S. District Judge Terrence F. McVerry on Wednesday upheld a previous ruling by U.S. Magistrate Judge Lisa Pupo Lenihan, who issued a 52-page opinion in February.
Legal experts say it is the first such opinion on stored cell phone records ever issued by a U.S. district court.
At issue was a request by the government to access cell phone records related to a drug suspect that agents were having "difficulty in visually surveilling."
Those records would allow prosecutors to show where the suspect had been in the past when making and receiving calls. Cell phone towers in urban areas can be used to track a person's whereabouts to within 200 feet of their exact location.
The government has not yet said if it will appeal to the 3rd U.S. Circuit Court of Appeals, and U.S. Attorney Mary Beth Buchanan said her office is reviewing the opinion.
In her opinion, Judge Lenihan found that such information is something in which the public holds "a reasonable expectation of privacy," which means that the government must show probable cause because the "information so broadly sought is extraordinarily personal and potentially sensitive."
Further, she said that the low cost to the government to obtain the requested information and the fact that the requests to cell phone service providers are not public records make such requests "particularly vulnerable to abuse."
"[Most] Americans would be appalled by the notion that the government could obtain such a record without at least a neutral judicial determination of probable cause," she added.
But the government appealed her finding and argued in a brief to Judge McVerry that because wireless carriers regularly maintain data on cell phone usage -- and because the data provides only a general location for a user's whereabouts -- that there is no privacy interest.
Judge McVerry disagreed and affirmed Judge Lenihan's decision.
The judge's opinion has been lauded by groups such as the Electronic Frontier Foundation, which filed a friend of the court brief on the matter.
"Where information is sensitive, like tracking someone's location either in the past or future, you have to have a good reason for that," said Jennifer Granick, the civil liberties director there. "Not just a reason, but a good reason."
But Orin Kerr, a constitutional law professor at George Washington University, said Judge Lenihan's decision is simply wrong.
Instead, he said, the Stored Communications Act requires that law enforcement offer to a judge only "specific" facts to obtain the information.
"There's definitely judicial oversight of the specific facts," Professor Kerr said. "It's just a lower threshold than probable cause."
Dr. Kerr believes that in making her decision, Judge Lenihan got caught up in whether a cell phone is a tracking device.
"These are very technical statutes, so it's easy to get lost," Dr. Kerr said.
In its brief, the government agreed.
"[T]he decision below errs in finding that the target cell phone was a 'tracking device,' prosecutors wrote.
Instead, a tracking device is a homing device installed by the government.
They continued: "there is not a scintilla of evidence in the legislative history that Congress intended cell phones to be classified as tracking devices."
Prosecutors also argued that the historical information provided by the records in question is not content from a conversation and therefore does not require probable cause.
First Published September 13, 2008 12:00 am
