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October 27, 2005

Your Cell Phone May Be Tracking You For the Government

The Electronic Frontier Foundation is reporting on a series of cases concerning the government's attempts to gain access to a cell phone customer's cell site data.  As explained by Magistrate Stephen William Smith in an opinion from the Southern District of Texas, cell phones can leave a data trail as they pass through the various convergence of cell locations, all of which is available to the wireless provider.  This trail means that cell phones can be used as a tracking device whether or not the target is using his or her phone at the time of travel.  The phone merely needs to be on for this to occur.

The issue in the case is not whether the government is entitled to receive the information, but whether it needs to provide probable cause to do so.  In two government attempts using a lower standard for cell location information, magistrate judges denied the requests.  Both courts noted the lack of appellate case law that would have provided guidance.  In both cases, the judges took the position that the government's arguments combining bits and pieces from various statutes was somewhat tortured.  At the same time, both judges noted that the information the government sought was obtainable with a showing of probable cause.

Judge Smith's opinion in the case of In R Application for Pen Register and Trap/Trace Device with Cell Site Location Authority (October 14, 2005) is here.

Magistrate Judge James Orenstein's opinion in In the Matter of Application of the United States for an Order Authorizing the Use of a Pen Register and Trap and Trace Device and Authorizing Release of Subscriber Information, 384 F. Supp. 2d 562 (E.D.N.Y. 2005) is here.

The EFF notes on the cases are here and here.

October 27, 2005 | Permalink

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» Government's Authority to Track Cell Phones Curtailed from IP Democracy
Courtesy of Tech Law Prof Blog, two recent decisions by magistrate judges have curtailed the governments authority to track an individuals location by obtaining data from wireless phone companies. The issue is not whether law enforcement ... [Read More]

Tracked on Oct 28, 2005 4:54:42 AM

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