Cell phone location data not private, Feds argue

Fifth Circuit appellate court hears arguments on warrantless tracking of cellular location data

Individuals have no reasonable expectation of privacy in historical cell phone location data collected and maintained by phone companies, a federal prosecutor said in oral arguments Monday before a three-judge panel from the Fifth Circuit Court of Appeals in New Orleans.

The court is reviewing an appeal from the U.S government in a case pertaining to the government's authority to collect historical cell phone location data from a phone company without obtaining a formal search warrant first.

Federal prosecutors in the case have maintained that the Stored Communications Act (SCA) of 1986 allows them to use a relatively easy-to-obtain court order, called 2703 (d), to force a cellphone company to turn over historical cell-site location information on specific subscribers.

Privacy advocates have insisted that law enforcement authorities should be required to obtain search warrants based on higher reasonable cause standards before they can ask a carrier for cell phone location data. They have argued that any location data collected without such a warrant is a violation of Fourth Amendment rights against unreasonable search and seizure.

The case is an important one and comes at a time when lawmakers and courts around the country are grappling with the issue of warrantless tracking of location data by law enforcement authorities. Many have expressed concern that unbridled cell phone location tracking will let the government conduct extensive surveillance on cell phone owners.

In August, the Sixth Circuit Court of Appeals ruled that Fourth Amendment protections do not in fact extend to cell phone location data. In arriving at the decision, the court maintained that there is little constitutional difference between tracking a suspect physically on public roads and using cellular technology to do the same thing.

The Sixth Circuit's decision was somewhat at odds with one arrived at two years ago by the Third Circuit appellate court which held that law enforcement authorities needed to obtain search warrants to gather customer cellphone location data stored by phone companies.

Meanwhile in California, state lawmakers recently passed legislation that would have required law enforcement to obtain a search warrant for seeking location-tracking data. California Governor Jerry Brown however vetoed that bill last weekend.

The case before the Fifth Circuit goes back to 2010 when law enforcement authorities in Houston, Texas, tried to obtain separate, but similar court orders seeking to compel two phone companies -- T-Mobile and MetroPCS -- to give up 60-days worth of cell-site location data pertaining to criminal suspects in three separate investigations.

Two of the targets of the investigations were suspected drug traffickers while the third was suspected of being involved in gang activity.

A Texas Magistrate judge who reviewed the applications for the 2703 (d) orders denied each one on the grounds that any compelled disclosure of cell-site data would be a violation of Fourth Amendment protections.

A Houston District Court that heard the government's appeal of the decision concurred with the lower court and maintained that a compelled disclosure under a 2703(d) order was not constitutional.

In arguments Monday before the Fifth Circuit, federal prosecutor Nathan Judish reiterated the government's position that the Fourth Amendment allows the U.S. government to obtain a 2703(d) order to force a cell phone company to divulge customer records.

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