Cell phone location data not private, Feds argue

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

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The SCA explicitly allows the government to seek such information without a warrant so long as it can clearly show that the information is relevant to a criminal investigation, he said.

Judish maintained that the information being sought by the government was collected and maintained totally at the discretion of the two phone companies. Neither company had any legal mandate to maintain those records, he said.

Judish characterized the information being sought as business records maintained by a third party and collected as part of doing business. Customers can have no reasonable privacy expectation over such data because the data is part of a third-party's business records, he said.

Judish downplayed the sensitivity of the data being sought and said that the government was only interested in data such as date and time of calls, the telephone numbers involved in a call, whether the call originated or terminated with a call and other such data. The only location information being sought pertains to when the phones were used to make calls or send text messages, he said.

"We would get some limited information on where they were," when making calls or sending text messages over the 60-day period, he said. "These records are the phone company's own observations of its own service made and kept at its own discretion on its own equipment."

From that standpoint the phone company's role is akin to that of a witness in a criminal investigation. "The government has a right to every person's evidence in a criminal investigation," he said.

Hanni Fakhoury, a staff attorney for the Electronic Frontier Foundation (EFF), which has filed an amicus brief in the case, rejected the government's arguments.

"Technology is changing in a way that makes cell-site information a lot more precise and accurate," said Fakhoury who presented the EFFs arguments before the Fifth Circuit judges on Tuesday. The kind of records being sought by prosecutors in the case will help them get an extremely detailed picture of the whereabouts of the targeted individuals over a 60-day period.

"What the technology allows them to do is get 60 days of your every turn, your every move and every place you have gone. Not just where you car has gone but where you yourself have gone. The way the technology has improved that could even be a particular floor or even a particular room in a building," he said.

Such data, regardless of who it is being held by, is constitutionally protected and government access to it should only be via a court-issued warrant based on reasonable cause, Fakhoury said.

Jaikumar Vijayan covers data security and privacy issues, financial services security and e-voting for Computerworld. Follow Jaikumar on Twitter at  @jaivijayan or subscribe to Jaikumar's RSS feed . His e-mail address is jvijayan@computerworld.com.

See more by Jaikumar Vijayan on Computerworld.com.

Copyright © 2012 IDG Communications, Inc.

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