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    Wired: Obama Administration: Constitution Does Not Protect Cell-Site Records

    Wired News reports:

    The Obama administration says the Fourth Amendment prohibition against unreasonable searches and seizures does not apply to cell-site information mobile phone carriers retain on their customers. 

    The position is being staked out in a little-noticed surveillance case pending before the 3rd U.S. Circuit Court of Appeals in Philadelphia. The case has wide-ranging implications for Americans, as most citizens have or will carry a mobile phone in their lifespan.

    At issue is whether the government can require federal judges to order mobile phone companies to release historical cell-tower information of a phone number without probable cause — the standard required for a search warrant. […]

    “Because wireless carriers regularly generate and retain the records at issue, and because these records provide only a very general indication of a user’s whereabouts at certain times in the past, the requested cell-site records do not implicate a Fourth Amendment privacy interest,” the Obama administration wrote (.pdf) Feb. 13 to the federal appeals court.

    The ACLU, Center for Democracy and Technology, and Electronic Frontier Foundation have filed an amicus brief (pdf) in the case, saying that location data kept by a cellphone provider is legally protected and urging the appeals court to uphold the lower court ruling against the government.

    The ACLU and EFF also had filed a lawsuit in July attempting to get the Department of Justice “to turn over records related to the government’s use of people’s cell phones as tracking devices.” The groups said the Justice Deparment has “failed to release the documents or provide an adequate response to” the ACLU’s November 2007 Freedom of Information Act request for the records “following revelations that federal officials are using Americans’ cell phones to pinpoint their locations, sometimes without a warrant or any court oversight.”

    In November, the two groups published documents that were disclosed because of the lawsuit. The documents revealed the federal government had developed a technology that would be able to gather mobile phone location data without the assistance of a service provider. The ACLU said:

    The FBI now has what is called “triggerfish” technology — a cell site simulator that forces cell phones in the area to register its phone number, serial number and location — allowing it to track cell phones on its own. This raises the risk that they will do so without bothering to go to a court for permission first, since they no longer need to compel the provider to cooperate.

    The documents do indicate that at least currently, the FBI’s standard procedure is to seek a court order before using “triggerfish” to track cell phones. However, when obtaining those court orders — for “pen register and trap and trace” surveillance — the government doesn’t show probable cause that a crime has been or is being committed, or even demonstrate to the court that the person being spied on is relevant to an ongoing investigation. The government simply tells the court that it thinks the target is relevant and then the court issues the order, a process offering little protection against the abuse of this powerful surveillance technology. In fact, the Department of Justice documents themselves suggest some government folks might be apprehensive: “The use of a triggerfish to locate cellular telephones is an issue of some controversy.” People with questions or concerns are instructed to contact Mark Eckenwiler, Senior Counsel at the DOJ Computer Crime and Intellectual Property Section.

    A previous post involving mobile phones, but not location data, may be of interest to readers. In September, I wrote about an appellate court’s decision to affirm a lower court ruling (pdf) that an investigative stop of a vehicle (also called a Terry stop after the Terry v. Ohio case), did not permit a police officer to open the driver’s mobile phone and find the subscriber number associated with the phone.

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