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Warrants may be needed for cell phone data, court says

Federal appellant court says that in some cases, judges can ask prosecutors for probable cause

September 9, 2010 06:00 AM ET

Computerworld - In a precedent-setting decision, a federal appellate court this week ruled that judges have the option of asking prosecutors to obtain a warrant before they are allowed to access to an person's cell phone location data.

But the court left untouched the question of whether access to such data is protected under Fourth Amendment rights against unreasonable search and seizure.

The ruling by the U.S. Court of Appeals for the Third Circuit rejected government claims that current statutes require courts to always allow access to cell phone data whenever prosecutors are able to show they have "reasonable cause" for wanting it. (A copy of the verdict is available for download from the Electronic Frontier Foundation's Web site.)

In its ruling, a three-judge panel for the Third Circuit noted that the language of the Stored Communications Act (SCA) gives judges the option of asking prosecutors to obtain a warrant, based on probable cause, in some situations.

"We are unwilling to remove that option although it is an option to be used sparingly," U.S. Circuit Judge Dolores Sloviter wrote in a 32-page opinion.

This is the first time that a federal appeals court has ruled on the legal standards that law enforcement needs to meet when seeking access to cell phone records.

The decision is tied to a 2008 request by prosecutors in Pittsburgh for cell phone location data in connection with a narcotics investigation. The request, filed under the SCA, sought a court order requiring a cellular service provider to disclose the "transactional records" of a suspected drug trafficker.

Prosecutors wanted the service provider to include historical cellular tower data, cellular tower site information and other tracking data because they claimed there were reasonable grounds to believe the information would be relevant to its ongoing investigation.

However, Pittsburgh's magistrate judge to whom the request was made denied the government's request, and held that cell phone tracking data was protected under the Fourth Amendment.

In her ruling magistrate judge Lisa Lenihan held that cell phone information was "extraordinarily" private and sensitive and any government demands for access to that data had to be based on probable cause grounds and not mere reasonable cause.

Judge Lenihan's verdict was signed by four other judges and later upheld by a District Court judge as well.

In appealing the decision, the government argued that the SCA allowed it the authority to ask for the data without requiring a warrant for it. The government also contended that no Fourth Amendment rights were being violated by its demands for the data.

In its ruling this week, the appeals court noted that the SCA contains no explicit requirement for the government to obtain a probable cause warrant in seeking cell phone data. However, the way the statute is worded gives judges the option of asking for a warrant if they think it is justified, the judges noted.

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