FBI needs a warrant to track mobile phone users, says court

Out-Law News | 01 Nov 2005 | 3:55 pm | 1 min. read

US judges last month rejected attempts by the FBI to track the location of mobile phone users, saying that the Government had to show probable cause that a crime was being committed before warrants would be granted.

According to rights group the Electronic Frontier Foundation (EFF), which submitted a friend-of-the-court brief in respect of a case being heard by the US District Court for the Eastern District Court of New York, the Justice Department had been seeking to monitor the location of a particular mobile phone, and to obtain details of numbers called from and calling to that phone.

In August, Magistrate Judge James Orenstein granted the bulk of the Government's requests, on the grounds that they were relevant to the investigation. However, the judge then denied the location monitoring application, on the grounds that it turned a mobile phone into a tracking device – for which a higher standard of proof is required.

The Justice Department appealed, arguing that courts have granted real-time phone tracking requests on many previous occasions, without requiring that the Government show probable cause that a crime was being committed.

It pointed to two statutes which, it said, taken together showed that this level of proof was not required.

Judge Orenstein disagreed, ruling last week that: "When the government seeks to turn a mobile telephone into a means for contemporaneously tracking the movements of its user, the delicately balanced compromise that Congress has forged between effective law enforcement and individual privacy requires a showing of probable cause.”

Earlier in October a magistrate judge in Texas, following the lead of Orenstein's original decision, denied another Government application for a cell phone tracking order.

That ruling, along with Judge Orenstein's two decisions, reveals that the Department of Justice has routinely been securing court orders for real-time cell phone tracking without probable cause and without any law authorising the surveillance, says the EFF.

"The Justice Department's abuse of the law here is probably just the tip of the iceberg," said EFF Staff Attorney Kurt Opsahl. "The routine transformation of your mobile phone into a tracking device, without any legal authority, raises an obvious and very troubling question: what other new surveillance powers has the Government been creating out of whole cloth and how long have they been getting away with it?"

The Government is expected to appeal both decisions.

"This is a true victory for privacy in the digital age, where nearly any mobile communications device you use might be converted into a tracking device," said EFF Staff Attorney Kevin Bankston. "I think we're seeing a trend – judges are starting to realise that when it comes to surveillance issues, the DOJ has been pulling the wool over their eyes for far too long."