Gov't Sued Over Cell Phone Tracking

Published on
Inter Press Service

Gov't Sued Over Cell Phone Tracking

William Fisher

NEW YORK - If you are a U.S.
resident who owns a cell phone, you should care about the outcome of a
court case that "could well decide whether the government can use your
cell phone to track you - even if it hasn't shown probable cause to
believe it will turn up evidence of a crime."

That was the warning
issued to the public by several major civil liberties organizations as
they appeared in federal court in Philadelphia to argue for more
privacy protections in the use of cell phones as tracking devices by
law enforcement agents.

case is at the heart of the constitutional crisis now being played out
in the U.S. federal court. Civil liberties groups are asking the court
to require that the government show probable cause before it can track
your whereabouts.

The groups are the Electronic Frontier
Foundation (EFF), the American Civil Liberties Union (ACLU), the ACLU
of Pennsylvania, and the Center for Democracy and Technology (CDT).

in 2007, the U.S. government applied for court permission to obtain
information about the location of an individual's cell phone, without
showing probable cause that tracking the individual would turn up
evidence of a crime.

A magistrate judge denied the government's
request and a district court upheld that decision in September 2008.
The government is appealing the ruling in the U.S. Court of Appeals.

number of civil liberties groups, on behalf of plaintiffs in the case,
filed a friend-of-the-court brief in support of the district court
decision, arguing that district courts must require the government to
show probable cause before permitting the government to obtain
information about the location of a cell phone.

The appeals
court will decide whether government agencies in Pennsylvania, New
Jersey and Delaware must show probable cause before tracking people's
cell phone locations.

EFF explains that, although most people don't realize it, cell phones double as tracking devices.

phones contain GPS chips, the same technology that allows car
navigation systems to know where you are and give you driving
directions. But even older phones that don't have chips can be tracked
by knowing the location of the cell towers they use to connect to a
network," the group said.

"There's no question that cell
phones and cell-phone records can be useful for police officers who
need to track the movements of those they believe to be breaking the
law," the group added. "And it is important for law enforcement agents
to have the tools they need to stop crimes. However, it is just as
important to make sure such tools are used responsibly, in a manner
that safeguards our personal privacy."

Prof. Francis A. Boyle of
the University of Illinois law school told IPS that the practice
violates the Fourth Amendment to the U.S. Constitution, which states in
part that "no Warrants shall issue, but upon probable cause, supported
by Oath or affirmation, and particularly describing the place to be

"The [George W.] Bush administration reduced the
Fourth Amendment to nothing more than a Potemkin Village of rights,"
Boyle said. "It exists on paper alone. And a pusillanimous Congress has
gone along with shredding the entirety of the U.S. Bill of Rights."

Obama, the former constitutional law professor, is actively defending
in court every hideous atrocity that the Bush administration inflicted
upon the Bill of Rights, civil rights, civil liberties, human rights,
international law, and the United States Constitution with the
acquiescence and/or approval by Congress," he said.

This issue
gained national attention during last year's gubernatorial race in New
Jersey. Documents turned over in EFF's lawsuit revealed that "the U.S.
Attorney's Office - under Chris Christie, now the governor - was
tracking cell phones without probable cause, in violation of a Justice
Department recommendation," EFF said.

The decision reached by
the Philadelphia-based Third Circuit U.S. Court of Appeals will not
only bind federal courts throughout Pennsylvania, New Jersey and
Delaware. It will also be a key source of guidance to courts around the
country as they grapple with this issue.

The plaintiffs in the
court case hope the court will "send a message that merely carrying a
cell phone should not make people more susceptible to government

They add, "No one wants to feel as if a
government agent is following her wherever she goes - be it a friend's
house, a place of worship, or a therapist's office - and innocent
Americans shouldn't have to feel that way."

The government has
argued that "One who does not wish to disclose his movements to the
government need not use a cellular telephone."

But the civil
liberties groups say this is "a startling and dismaying statement
coming from the United States. The government is supposed to care about
people's privacy. It should not be forcing the nation's 277 million
cell-phone subscribers to choose between risking being tracked and
going without an essential communications tool."

The case has
drawn considerable national attention. One of the country's foremost
investigative journalists, Michael Isikoff of Newsweek, addressed the
issue in a recent edition of the magazine.

He wrote, "Law
enforcement is tracking Americans' cell phones in real time - without
the benefit of a warrant. Amid all the furor over the Bush
administration's warrantless wiretapping program a few years ago, a
mini-revolt was brewing over another type of federal snooping that was
getting no public attention at all."

"The prosecutors said
they needed the records to trace the movements of suspected drug
traffickers, human smugglers, even corrupt public officials. But many
federal magistrates - whose job is to sign off on search warrants and
handle other routine court duties - were spooked by the requests. Some
in New York, Pennsylvania, and Texas balked," he wrote.

W. Smith, a federal magistrate in Houston, said he "started asking the
U.S. Attorney's Office, 'What is the legal authority for this? What is
the legal standard for getting this information?'"

Two years
ago, a U.S. magistrate in Pittsburgh ruled that the data they were
seeking could easily be misused to collect information about sexual
liaisons and other matters of an "extremely personal" nature.

federal appeals court last week, a Justice Department lawyer urged the
judges to overturn the magistrate's ruling. They claimed the government
was seeking "routine business records."

But after one of the
judges said there were some governments, like Iran's, that would like
to use such records to identify political protesters, she asked whether
the "government can assure us" that the Justice Department would never
collect cell-phone data for this kind of use in the U.S.

The government lawyer grudgingly acknowledged that such data "could be used constitutionally."

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