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The Snitch in Your Pocket: Is it Legal for the Government to Track Personal Cell Phones without a Warrant?

March 4, 2010 by · Comments Off
Filed under: Business, law, Online Privacy 

By Emily S., William & Mary Class of 2011

While the country was in an uproar about government wiretapping during the Bush administration, another type of government access to personal information was being largely overlooked.  On February 19, 2010 NEWSWEEK ran a story revealing that federal prosecutors have been seeking telecommunications companies’ internal data showing the locations of customer cell phones. Prosecutors claim to need these records in order to track down drug traffickers, human smugglers, and corrupt officials, but some federal magistrates (who sign off on these requests) have questioned the need for such invasive techniques. Alarmed by these methods, federal magistrates in Texas, New York, and Pennsylvania have spurred a constitutional clash between Obama’s Justice Department and civil libertarians who disapprove of government intrusion into personal affairs.

Civil libertarians have long decried government access to bank records and credit card transactions, but using cell-phones as surreptitious tracking devices has caused particular concern. Keeping location data on cell phones was originally meant as a means of aiding 911 operators sending police and medical help to the scene of an accident or crime, but it has evolved into an unsuspected locating device that government agents are able to access without a judicial warrant. It is unclear how often these records are accessed by federal agencies, but NEWSWEEK’s sources claim it has grown exponentially in the past few years and that companies are now getting thousands of such requests a month.

Access to this information is certainly a powerful tool for law enforcement agents going after elusive criminals, however abuse has also occurred.  Worried about this potential for abuse, several federal magistrates began refusing government agents’ requests for this information.  The requests often come in with little legal reasoning behind them, but when some magistrates refused them they were simply sent to other more amenable magistrates.  Recently, however, the legal community has begun to take notice. Faced with a request to grant access to historical cell phone records for a drug-smuggling case, a magistrate in Western Pennsylvania wrote a 56 page opinion turning the request down, detailing all of the ways that the information could be misused. To prevent the government agency from going to another magistrate, all of the magistrates in Western Pennsylvania lent their signatures to her opinion. (source: NEWSWEEK)

In February of this year, the issue was sent to a federal courtroom in Philadelphia. The lawyer seeking to overturn the Pennsylvania magistrate’s ruling was closely questioned by one judge, who wished to make certain that these records could never be used by the federal government to identify political protestors. After trying in vain to deflect the question, the lawyer finally acknowledged that the constitution did not guard against such a use. This disconcerting answer shocked many privacy advocates and ensures that this issue will be closely watched by the legal community.