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    Legal Intelligencer: 3rd Circuit to Mull Privacy of Cell Phone Data

    The Legal Intelligencer discusses an upcoming case in the Third Circuit concerning the rights individuals have in the privacy of cellphone data.

    In a case that could prove to be one of the most important privacy rights battles of the modern era, the 3rd U.S. Circuit Court of Appeals will hear argument this week on the proper legal standard to apply when prosecutors demand cell phone location data.

    The data, which are recorded about once every seven seconds whenever a cell phone is turned on, effectively track the whereabouts and the comings and goings of every cell phone user.

    Justice Department lawyers argue that, by statute, they need only show “reasonable grounds” to believe that such records are “relevant and material to an ongoing criminal investigation.”

    But [U.S. Magistrate Judge Lisa Pupo Lenihan] in Pittsburgh strongly disagreed in February 2008, issuing a 52-page opinion that said the prosecutors must meet the “probable cause” standard. […]

    Now, in an appeal of Lenihan’s ruling, the 3rd Circuit will become the first federal appellate court to tackle the question as Justice Department lawyers square off against a coalition of privacy and civil liberties lawyers from the Electronic Frontier Foundation, the Center for Democracy & Technology and the American Civil Liberties Union. […]

    Lenihan concluded that the data sought by the prosecutor amounted to “tracking information,” and that Congress clearly intended to require prosecutors to meet a probable cause test to secure such data. […]

    [EFF attorney Kevin ]Bankston, in a brief jointly filed by the Electronic Frontier Foundation, the ACLU and the Center for Democracy & Technology, urges the 3rd Circuit to uphold Lenihan’s ruling on the grounds that Congress intended to give judges the discretion to deny such requests and require prosecutors to meet the ordinary standard for a search warrant.

    Cell phone users, Bankston argues, have an expectation of privacy in such data because they “simply do not voluntarily expose their location whenever they make calls and receive calls … nor do they do so merely by turning on their cell phones.”

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