A federal appeals court on Tuesday said that government authorities could extract historical location data directly from telecommunications carriers without a search warrant. The closely watched case, in the United States Court of Appeals for the Fifth Circuit, is the first ruling that squarely addresses the constitutionality of warrantless searches of historical location data stored by cellphone service providers. Ruling 2 to 1, the court said a warrantless search was “not per se unconstitutional” and therefore not protected by the Fourth Amendment. http://www.nytimes.com/2013/07/31/technology/warrantless-cellphone-tracking-is-upheld.html?ref=us
The appeals court ruling sharply contrasts with a New Jersey State Supreme Court opinion in mid-July that said the police required a warrant to track a suspect’s whereabouts in real time. That decision relied on the New Jersey Constitution, whereas the ruling Tuesday in the Fifth Circuit was made on the basis of the federal Constitution.
The ruling sets an important precedent: It allows law enforcement officials in the Fifth Circuit to chronicle the whereabouts of an American with a court order that falls short of a search warrant based on probable cause.
“This decision is a big deal,” said Catherine Crump, a lawyer with the American Civil Liberties Union. “It’s a big deal and a big blow to Americans’ privacy rights.”
The group reviewed records from more than 200 local police departments last year, concluding that the demand for cellphone location data was so great it had led some cellphone companies to develop “surveillance fees” to enable police to track suspects.
In reaching its decision on Tuesday, the federal appeals court went on to agree with the government’s contention that consumers knowingly give up their location information to the telecommunications carrier every time they make a call or send a text message on their cellphones.
“That means it is not protected by Fourth Amendment when the government goes to a third-party service provider and issues something that is not a warrant to demand production of those records,” said Mark Eckenwiler, a former Justice Department lawyer who worked on the case and is now with the Washington law firm Perkins Coie. “On this kind of historical cell site information, this is the first one to address the core constitutional question..”
Location data can be vital in establishing people’s habits and preferences, including whether they worship at a church or mosque or whether they are present at a political protest, which is why, civil liberties advocates say, it should be accorded the highest privileges of privacy protection.
Cellphone privacy measures have been proposed in the Senate and House that would require law enforcement agents to obtain search warrants before prying open location records. Montana recently became the first state to require a warrant for location data. Maine soon followed.