December 23, 2005 4:00 AM PST

Police blotter: Judge lets Feds track cell phones

"Police blotter" is a weekly report on the intersection of technology and the law.

What: Invoking the Patriot Act, the Justice Department asked to eavesdrop on the location of a cell phone user without providing evidence that criminal activity was taking place.

When: U.S. Magistrate Judge Gabriel Gorenstein, in the Southern District of New York, ruled on Dec. 20 (click here for PDF).

Outcome: Cell phone tracking permitted.

Summary: Federal police may monitor the locations of Americans by constantly tracking their cell phone signals without providing evidence of criminal activity, a magistrate judge has ruled.

In a surprise ruling that differed from recent decisions by three other judges, Gorenstein said his reading of federal wiretapping law and the Patriot Act permitted police to obtain location-tracking orders without any evidence of wrongdoing.

Gorenstein also said that because the cell phone user's location is only available to police when a call is in progress, and because the location information is only a rough estimate, such tracking is permissible under the Fourth Amendment. That amendment, part of the Bill of Rights, prohibits "unreasonable" searches and monitoring.

The Justice Department has argued that it should be allowed to monitor Americans without having to show "probable cause"--that is, at least some evidence of criminal behavior. Instead, federal prosecutors say, all police need to claim is that the information obtained might in some way be "relevant" to a criminal investigation.

The Federal Defenders of New York filed a brief arguing that Americans should enjoy more privacy when being tracked in real-time through their cell phones. In a related letter (click here for PDF) sent earlier this month that the judge did not appear to consider, the Electronic Frontier Foundation argued that "only" a search warrant based on probable cause of wrongdoing satisfies the Fourth Amendment.

Gorenstein's decision this week was a surprise because other courts have rejected similar requests. That started with a decision, first reported by CNET News.com in a Sept. 2 installment of Police Blotter, from U.S. Magistrate Judge James Orenstein.

Excerpt from the court's opinion: "The only remaining question is whether the issuance of a court order for cell site information...is unconstitutional because it violates the Fourth Amendment's prohibition against unreasonable searches and seizures. (The public defenders' brief) discusses the issue in terms of whether the cell phone is a 'tracking device' and whether a warrant grounded in probable cause is necessary for the installation of such a device. But the data being sought by the government in this district is not what amicus believes it to be.

"The information does not provide a 'virtual map' of the user's location. The information does not pinpoint a user's location within a building. Instead, it only identifies a nearby cell tower and, for some carriers, a 120-degree face of that tower. These towers can be up to 10 or more miles apart in rural areas and may be up to a half-mile or more apart even in urban areas. Moreover, the data is provided only in the event the user happens to make or receive a telephone call. Thus, amicus' s reference to tracking devices and the cases considering this technology is not on point.

"The government does not seek to install the 'tracking device': the individual has chosen to carry a device and to permit transmission of its information to a third party, the carrier. As the Supreme Court has held in the context of telephone numbers captured by a pen register, the provision of information to a third party does not implicate the Fourth Amendment."

14 comments

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important case -- convoluted reasoning
Good catch, Declan. It's indeed important that Federal magistrates
are now 3-1 on the question of whether probable cause is required
to get location information. The result in this one is unfortunate, as
you imply, but more a result of convoluted (and I think incorrect)
statutory interpretation, than a major 4th amendment argument.
I've <a href="#">written</a> more about this on my blog.
Posted by djweitzner (1 comment )
Reply Link Flag
we have no freedom =(
we are monitered and tracked, and watched, in everything we do, by what books we check out at the library, etc, its sad
Posted by digitallysick (103 comments )
Reply Link Flag
Welcome to the new AmeriKa.
This administration has managed to void any and all rights that Americans has under the constitution! The Patriot Act was just a first step, since ALL our constitutional rights have been unsurped in the name of a 'war on terrorism'.... 'terrorism' is a tactic! not a country! nor a viable enemy! IT IS A TACTIC!!
How can you declare war on a tactic that has been used for thousands of years and will continue....
And the American Sheep go .... bllllleeeeehhh.,...
Posted by Vetter83 (50 comments )
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Not all that important
While Magistrate judges are the first line of defense in protecting the Constitutional rights of individuals from overzealous prosecutors, their decisions hold so little presidential weight that the end result is one individual case decided wrongly (and likely to be changed upon appellate review); no later decision will be based on this one. Moreover, if I were a prosecutor I don't think I'd want this kind of warrant, absent probable cause, on the chance that all the evidence I collected based upon it would be deemed "fruit of the poisonous tree" later on.
Posted by TitanBane (2 comments )
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Do you own yourself or are we goverment property?
How can we be free when a drivers license is a permit insted of a
right (for sober adualts)? Outside NY, London &#38; Tyoko you cannot
have a reasonable life (pursuit of happenies) without a car! reply to
prepostman1 at yahoo. Do you own yourself or are we goverment
property?
Posted by (4 comments )
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Freedoms
This is just another example of how WE let our freedoms erode in the name of security. When our freedoms are attacked by terrorists we should grant ourselves more freedoms not less. Who is winning.
Posted by Computerguy107 (1 comment )
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An important error in your story ..
You wrote :

"Gorenstein also said that because the cell phone user's location is only available to police when a call is in progress, "

and it should have been :
"Gorenstein also *made the false claim* that because the cell phone user's location is only available to police when a call is in progress, "

Tracking is active as soon as the phone is powered, no matter if there is a call in progress or not (location tracking is just a refinement of the triangulation techniques already used for roaming).

If you're wearing a cell phone, this information allow them to literally 'replay' your whole life, and where you are is what you do.

And don't even think about leaving it on the table instead of taking it with you. Your normal activity produces jitter in the signal level as you move around.

When the 'feature' was introduced, the pretext was to get location information *only* for 911 calls, and anyone who clearly saw the abuse coming was dismissed (including in C-Net boards) ... once again, we were unfortunately right.

So what's next ? When do we finally learn that the microphone can also be activated remotely at any time ? (It can, it have been, and it will become 'reasonable' sooner than you might think)

BTW, since it's now authorized against everyone without any reason, I guess that include Democrat politicians, including those who once had an affair... ;-)
Posted by My-Self (242 comments )
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People today...
... are more intelligent than ever. We can identify a law, find a hole in it and justify a new law around it. I am quite impressed. In a sad way though... So what's the point of being concerned with security and privacy? The government has its eye on you... anytime, anywhere... all the time... and it's legal! Scary...
Posted by Mendz (519 comments )
Reply Link Flag
You're All Missing the Point
No one makes you carry a cell phone. It's a matter of convenience. And to the extent that those records are turned over to the phone company, they're business records. Don't you want the cops to find you when you dial 911? Don't you want murderers and kidnappers (and their victims) quickly recovered by law enforcement? We're all too busy to loosely track the movements of garden variety thieves, cheats, perverts or scoundrels. Only Gorenstein has gotten it right--&gt; 1. cell sites do not equal tracking devices (no device, no install, no government control of transactions); 2. cell sites identify only the location of a cell tower that belongs to the telecomm (as opposed to identifying the location of the phone, itself) and their disclosure will never invade the privacy of your home b/c cops cannot ascertain a specific location. Bottom line: THIS STUFF SAVES MORE LIVES THAN YOU'LL EVER KNOW!!!
Posted by steve_percy (2 comments )
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