September 2, 2005 10:41 AM PDT

Police blotter: Cell phone tracking rejected

"Police blotter" is a weekly report on the intersection of technology and the law. This episode: Feds' location-tracking rebuffed.

What: In the first case of its kind, a federal judge chastises the U.S. Department of Justice for trying to constantly track a cell phone user's location without providing any proof of criminal behavior.

When: Decided Aug. 25 by U.S. Magistrate Judge James Orenstein in Central Islip, N.Y.

Outcome: Justice Department's Patriot Act surveillance request was denied.

What happened: Burton T. Ryan Jr., an assistant U.S. attorney, sought a court order that would permit federal agents to track a suspect though his cell phone--but he couldn't offer any evidence of actual criminal activity.

Ryan asked Orenstein to sign an order requiring the unnamed cellular provider to divulge the information, which would reveal the suspect's location whenever his cell phone was in use. (Cell phones must provide this information because of potential 911 emergencies, the Federal Communications Commission has ruled.)

Such location-tracking was permitted under the 2001 Patriot Act, which amended the definition of a "pen register," Ryan argued. A pen register records phone numbers that are dialed.

Orenstein disagreed. Location information amounts to a wiretap, he said, and therefore requires prosecutors to show "probable cause"--that is, at least some evidence of criminal behavior. Such an order "would effectively allow the installation of a tracking device without the showing of probable cause normally required for a warrant."

Citing congressional testimony by former FBI Director Louis Freeh, Orenstein rejected the request and told the Justice Department to appeal if it wanted further clarification. Freeh had assured Congress that "the authority for pen registers and trap and trace devices cannot be used to obtain tracking or location information."

Excerpt from Orenstein's opinion: "My research on this question has failed to reveal any federal case law directly on point. Moreover, it is my understanding based on anecdotal information that magistrate judges in other jurisdictions are being confronted with the same issue but have not yet achieved consensus on how to resolve it. If the government intends to continue seeking authority to obtain cell site location information in aid of its criminal investigations, I urge it to seek appropriate review of this order so that magistrate judges will have more authoritative guidance in determining whether controlling law permits such relief on the basis of the relaxed standard set forth (under federal law), or instead requires adherence to the more exacting standard of probable cause.

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Tracking Cell Phone Location Requires Warrant
I'm going to have to go parse the exact language of the Patriot Act, something I am sure the judge already did. though I have read through it at least as thoroughly as the Senators would appear to have had time to do before it was first passed in 2001 after 9/11, but it still permitted, and broadened, the Supreme Court's holding that keeping track of who I call using a "pen register," or who writes to me and who I write using a "mail cover," does not require a warrant.
This article, the first I have seen on this case although I follow several legal and news sites, reports that the judge reviewed FBI Dirctor Louis Freeh's comment in the legislative history that, under the Patriot Act,tracking an individual's exact whereabouts via his cell phone would require a warrant.

A [temporarily retired] lawyer of 35 years' experience,and having noted that the last official report revealed that no wiretap warrants had been turned down out of over 2,000 in the preceding year,I have often had the opinion that too many magistrates, many of whom are not required to have legal education or expertise, are too prone to abdicate their duty to make a detached and neutral review of probable cause and sign any and all warrant applications put in front of them, so I was pleased that this had to go before a real federal judge, and that he had considered the issues carefully and, upon finding no showing of probable cause, had turned down this application, although nothing is revealed in your article, my only source, about the underlying case or what the authorities amy in fact have known that had led them to seek to track this individual. This kind of location tracking, under a proper showing of probable cause for a warrant, might be useful in tracking a drug courier, including linking him to the mid-level distributorship. I know of one case where the pretrial publicity indicated that the police had tracked the murder defendant's movements, after his alibi statement, via his cell phone
records, etc., and that it impeached his statement to the police, but I did not hear of this actually being used at trial and he was, in fact, acquitted, to many people's surprise given other circumstantial evidence.

Having one's exact whereabouts tracked minute by minute by the authorities is something I would applaud in the case of child molesters and agree to in the case of suspected murderers or terrorists, but not as a routine matter even in a lot of criminal investigations. I'm troubled by such tracking of rental cars, but not of comemrcial trucks. The article did not quote the warrant affidavit and I have no clue what the authorities hoped to discover. There are few places just being at which should be incriminating, though I can think of a lot where this would be an invasion of medical and other rivacy rights. I have seen police reports in my practice which stated specifically that the defendant had been stopped, detailed, questioned, and ultimately arrested because of being in a "high crime area," to wit, at or directly across the street from two different police stations. I've been there myself, in fact, I live near one of these on the local university campus.

Personally, having run afoul of a "mail cover" and ended up on a list of suspected Soviet spies from 1959 to 1976, an utter absurdity which could easily have been checked and cleared up--my politics was and is conservative on most issues though iconoclastic, and other parts of the same government had declassified boxes of documents for me in the same research project that gave rise to this open contact, and which the CIA, the Post Office Deparment, and the Department of Justice originally denied to my Senator and me but whch the CIA admitted years later, I have always believed that the government ought to have to have some kind of judicial approval for such "mail covers," and ore specific control over compurerized lists of suspects, and I have all kinds of concerns over data mining by government and private entities without full disclosure and careful oversight.

Having legitimate professional interests and activities dealing with child sexual abuse and exploitation, including both incest and pornography, I have visited a lot of sites that might raise questions if someone who didn't know my professional and other background and position tracked by browsing. Some spammers have, with the result that I get spam headed with the unusual spelling of my wife's name, "prevent child abuse" but not from any legitimate child protection outfit, and, after I went to a legitimate sexual information site, some really wildly outrageous stuff. I Emailed my ISP, the NCMEC, etc., identified myself, and briefed them up front.

PETER S. CHAMBERLAIN
peterschamberlain@earthlink.net
Posted by Transaction7 (30 comments )
Reply Link Flag
Tracking Cell Phone Location Requires Warrant
I'm going to have to go parse the exact language of the Patriot Act, something I am sure the judge already did. though I have read through it at least as thoroughly as the Senators would appear to have had time to do before it was first passed in 2001 after 9/11, but it still permitted, and broadened, the Supreme Court's holding that keeping track of who I call using a "pen register," or who writes to me and who I write using a "mail cover," does not require a warrant.
This article, the first I have seen on this case although I follow several legal and news sites, reports that the judge reviewed FBI Dirctor Louis Freeh's comment in the legislative history that, under the Patriot Act,tracking an individual's exact whereabouts via his cell phone would require a warrant.

A [temporarily retired] lawyer of 35 years' experience,and having noted that the last official report revealed that no wiretap warrants had been turned down out of over 2,000 in the preceding year,I have often had the opinion that too many magistrates, many of whom are not required to have legal education or expertise, are too prone to abdicate their duty to make a detached and neutral review of probable cause and sign any and all warrant applications put in front of them, so I was pleased that this had to go before a real federal judge, and that he had considered the issues carefully and, upon finding no showing of probable cause, had turned down this application, although nothing is revealed in your article, my only source, about the underlying case or what the authorities amy in fact have known that had led them to seek to track this individual. This kind of location tracking, under a proper showing of probable cause for a warrant, might be useful in tracking a drug courier, including linking him to the mid-level distributorship. I know of one case where the pretrial publicity indicated that the police had tracked the murder defendant's movements, after his alibi statement, via his cell phone
records, etc., and that it impeached his statement to the police, but I did not hear of this actually being used at trial and he was, in fact, acquitted, to many people's surprise given other circumstantial evidence.

Having one's exact whereabouts tracked minute by minute by the authorities is something I would applaud in the case of child molesters and agree to in the case of suspected murderers or terrorists, but not as a routine matter even in a lot of criminal investigations. I'm troubled by such tracking of rental cars, but not of comemrcial trucks. The article did not quote the warrant affidavit and I have no clue what the authorities hoped to discover. There are few places just being at which should be incriminating, though I can think of a lot where this would be an invasion of medical and other rivacy rights. I have seen police reports in my practice which stated specifically that the defendant had been stopped, detailed, questioned, and ultimately arrested because of being in a "high crime area," to wit, at or directly across the street from two different police stations. I've been there myself, in fact, I live near one of these on the local university campus.

Personally, having run afoul of a "mail cover" and ended up on a list of suspected Soviet spies from 1959 to 1976, an utter absurdity which could easily have been checked and cleared up--my politics was and is conservative on most issues though iconoclastic, and other parts of the same government had declassified boxes of documents for me in the same research project that gave rise to this open contact, and which the CIA, the Post Office Deparment, and the Department of Justice originally denied to my Senator and me but whch the CIA admitted years later, I have always believed that the government ought to have to have some kind of judicial approval for such "mail covers," and ore specific control over compurerized lists of suspects, and I have all kinds of concerns over data mining by government and private entities without full disclosure and careful oversight.

Having legitimate professional interests and activities dealing with child sexual abuse and exploitation, including both incest and pornography, I have visited a lot of sites that might raise questions if someone who didn't know my professional and other background and position tracked by browsing. Some spammers have, with the result that I get spam headed with the unusual spelling of my wife's name, "prevent child abuse" but not from any legitimate child protection outfit, and, after I went to a legitimate sexual information site, some really wildly outrageous stuff. I Emailed my ISP, the NCMEC, etc., identified myself, and briefed them up front.

Reading some law professors' blogs recently, I was somewhat surprised to learn that there appears to be little law yet on a lot of privacy, Fourth Amendment, and Patriot Act issues concerning use of the Internet. I never read of the person who intercepted, recorded and published a private cell phone conversation by then House Speaker Newt Gingrich, in apparent civil and criminal violation of 47 U.S.C. 405 and probably other law as well, being arrested or prosecuted.

PETER S. CHAMBERLAIN
peterschamberlain@earthlink.net
Posted by Transaction7 (30 comments )
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Posted by elmer1964 (1 comment )
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