Today’s Must Read

Start your day with TPM.
Sign up for the Morning Memo newsletter

It’s not just foreign-to-domestic calls involving suspected terrorists. Nor library, business and medical records of American citizens in (mostly) terrorism-related cases. The list of circumstances under which law enforcement can jettison probable cause as a standard for obtaining information is expanding to include… carrying a cellphone.

Federal officials are routinely asking courts to order cellphone companies to furnish real-time tracking data so they can pinpoint the whereabouts of drug traffickers, fugitives and other criminal suspects, according to judges and industry lawyers.

In some cases, judges have granted the requests without requiring the government to demonstrate that there is probable cause to believe that a crime is taking place or that the inquiry will yield evidence of a crime. Privacy advocates fear such a practice may expose average Americans to a new level of government scrutiny of their daily lives.

Basically, as carriers increasingly offer subscribers the ability to stay informed of where their associates are at all times, law enforcement gets an investigative tool. In one recent case, a DEA agent sought a drug-trafficking suspect’s Nextel tracking information from a judge simply by asserting that the suspect was trafficking drugs, thereby turning probable cause on its head. The agent didn’t get away with it in this case, but in several other recent cases, courts issued warrants based on a determination that the location information provides “specific and articulable facts” relevant to an ongoing criminal investigation.

What does the Justice Department say about the practice? According to national-security division spokesman Dean Boyd, the department “strongly recommend[s]” retaining the probable cause standard. But judges have ruled that it’s not always necessary.

Since 2005, federal magistrate judges in at least 17 cases have denied federal requests for the less-precise cellphone tracking data absent a demonstration of probable cause that a crime is being committed. Some went out of their way to issue published opinions in these otherwise sealed cases.

“Permitting surreptitious conversion of a cellphone into a tracking device without probable cause raises serious Fourth Amendment concerns especially when the phone is in a house or other place where privacy is reasonably expected,” said Judge Stephen William Smith of the Southern District of Texas, whose 2005 opinion on the matter was among the first published.

But judges in a majority of districts have ruled otherwise on this issue, Boyd said. Shortly after Smith issued his decision, a magistrate judge in the same district approved a federal request for cell-tower data without requiring probable cause. And in December 2005, Magistrate Judge Gabriel W. Gorenstein of the Southern District of New York, approving a request for cell-site data, wrote that because the government did not install the “tracking device” and the user chose to carry the phone and permit transmission of its information to a carrier, no warrant was needed.

Pardon me while I disable my Twitter account.

Latest Muckraker
Comments
Masthead Masthead
Founder & Editor-in-Chief:
Executive Editor:
Managing Editor:
Associate Editor:
Editor at Large:
General Counsel:
Publisher:
Head of Product:
Director of Technology:
Associate Publisher:
Front End Developer:
Senior Designer: