Court OKs Warrantless Cell-Site Tracking [Privacy]

A federal appeals court said Tuesday the govt may obtain cell-site information cellular phone carriers retain on their customers without a possible cause warrant under the Fourth Amendment.

The decision (.pdf) by the 3rd U.S. Circuit Court of Appeals, however, was not an outright Obama administration victory. Lower courts, the three-judge panel wrote, could demand the govt show probable cause – the warrant standard – before requiring carriers to release such data to the feds.

The opinion, however, leaves the privacy issue in a legal limbo of varieties. The conventional during which the govt can access such records – that are used in criminal prosecutions – is left to the whims of district court judges. Historical cell-site location information, which carriers usually retain for approximately 18 months, identifies the cell tower to which the shopper was connected at the start of a decision and at the top of the call.

The lower courts across the country have issued conflicting rulings on the topic and should continue to achieve this without appellate guidance or congressional action. The Philadelphia-based court was the first appeals court to handle the problem.

The Obama administration argued a judge could force a carrier to provide cell-site data on a showing that the information was ” relevant and material” to an investigation .

But the appeals court, ruling in a narcotics case, said the Stored Communications Act, the law in question , was vague as to what standard was required.

Kevin Bankston, a privacy lawyer with the Electronic Frontier Foundation, which weighed in on the case with a pal-of-the-court brief, said the decision highlights Congress’ ought to clarify the law.

” What we’d like at this point is a clear, nationwide standard wen it comes to government access to this personal information,” he said.

At one point, the appeals court said the law gave judges ” the option” to require a warrant showing probable cause. But the court also said it was ” stymied by the failure of Congress to make its intention clear.”

” The considerations for and against this kind of requirement can be for Congress to balance,” the appeals court wrote. ” A court isn’t the acceptable forum for such balancing, and we decline to take a step as to which Congress is silent.”

Photo: Keithius /Flickr

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This post is tagged: cellular phone carriers, congressional action, criminal prosecutions, district court judges, electronic frontier foundation, federal appeals court