

A federal judge's decision requiring the government to get a court warrant before obtaining mobile-phone location data is one of a string of conflicting opinions on the topic. It comes as lawmakers and the Supreme Court weigh in on the hot-button issue of locational privacy.

U.S. District Judge Nicholas Garaufis ruled on Tuesday that the government can only acquire cellphone location data on a surveillance target with a full-blown "probable cause" warrant from a judge. The government had argued that it's entitled to the data whenever it's "relevant" to a criminal investigation – a lower standard. The feds were seeking 113 days worth of cell-site data, or "recorded information identifying the base-station towers and sectors that received transmissions" from the target's cellphone.

"While the government's monitoring of our thoughts may be the archetypical Orwellian intrusion, the government's surveillance of our movements over a considerable time period through new technologies, such as the collection of cell-site-location records, without the protections of the Fourth Amendment, puts our country far closer to Oceania than our Constitution permits," (.pdf) the judge wrote.

"It is time that the courts begin to address whether revolutionary changes in technology require changes to existing Fourth Amendment doctrine," Judge Garaufis wrote. "Here, the court concludes only that existing Fourth Amendment doctrine must be interpreted so as to afford constitutional protection to the cumulative cell-site-location records requested here."

But the decision, which isn't binding on other courts, is far from the the last word on the issue of locational privacy. A similar case is already scheduled for review by the Supreme Court. And on Capitol Hill, Senate Judiciary Committee Chairman Patrick Leahy (D-Vermont) has proposed legislation that would make the government's position in the case before Garaufis the law of the land, weakening privacy along the way.

Ironically, Leahy’s bill was drafted as a pro-privacy measure (.pdf). It would nullify a provision of the 1986 Electronic Communications Privacy Act that allows the government to acquire a suspect's e-mail or other stored content from an internet service provider without showing probable cause that a crime was committed, as long as the content has been stored on a third-party server for 180 days or more. At the moment, the government need only show that it has "reasonable grounds to believe" the information would be useful in an investigation.

But the Leahy bill, which has not been sent to committee for review, is a give-and-take of sorts when it comes to other forms of geolocational privacy. It would require the government to get a probable-cause warrant to obtain real-time cellphone-location data going forward. However, it would not require authorities to get a warrant to obtain past cellphone location data of a suspect.

That language was added to the bill to assuage the Obama administration, which was concerned about losing some of its crime-fighting powers in the digital age.

A competing, and more privacy-friendly proposal by Sen. Ron Wyden (D-Oregon) and Rep. Jason Chaffetz (R-Utah) would explicitly require authorities to obtain a court warrant to get geolocational information on a suspect’s movements.

Meanwhile, the Obama administration has petitioned the Supreme Court to allow the government, without a court warrant, to secretly install GPS devices on suspects' vehicles to track their every move. The petition, which was granted, is to be heard by the justices in the upcoming term and is arguably the biggest Fourth Amendment case in a decade – one weighing the collision of privacy, technology and the Constitution.

"Regardless of what the courts decide," said Kevin Bankston, a staff attorney with the Electronic Frontier Foundation, "the right answer when it comes to the Fourth Amendment does not preclude Congress as a policy matter that it should protect location data more strongly."

Photo: Kethius/Flickr

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