SurveillanceU.S. Appeals Court: govt. does not need search warrant to track cellphones

Appeals court rules warrants not required to obtain historical data // Source: albayan.ae

Law enforcement agencies have won a victory Tuesday when a federal appeals court ruled that government authorities could extract historical location data directly from telecommunications carriers without a search warrant.

The ruling by the U.S. Court of Appeals for the Fifth Circuit is the first ruling directly to address the constitutionality of warrantless searches of historical location data stored by cellphone service providers.

In 2011, U.S. District Judge Lynn Hughes had upheld a magistrate judge’s 2010 ruling which had denied a request by federal law enforcement authorities in three separate criminal investigations to compel cellphone companies to provide — without a search warrant — sixty days of records for several phones.

The U.S. Court of Appeals for the Fifth Circuit, in overturning Hughes’s 2011 order, said such data is a business record which is the property of the cellphone provider. The appeals court also said that the collection of such data by authorities does not have to meet a probable cause standard as outlined under the Fourth Amendment, which protects against unlawful search and seizure and requires a search warrant.

The New York Times reports that in a 2 to 1 ruling, the court said a warrantless search was “not per se unconstitutional” because location data was “clearly a business record” and therefore not protected by the Fourth Amendment.

“We understand the cell phone users may reasonably want their location information to remain private … But the recourse for these desires is in the market or the political process: in demanding that service providers do away with such records … or in lobbying elected representatives to enact statutory protections. The Fourth Amendment, safeguarded by the courts, protects only reasonable expectations of privacy,” the judges wrote.

The Times notes that the ruling will give added impetus to legislative measures, already being debated in Congress and in the states, requiring warrants based on probable cause to obtain cellphone location data.

A mid-July New Jersey State Supreme Court ruling said the police did require a warrant to track a suspect’s whereabouts in real time. The New Jersey court’s decision was based on the New Jersey Constitution, while Tuesday’s Fifth Circuit ruling relied on the federal Constitution.

The Supreme Court has not yet ruled on whether cellphone location data is protected by the Constitution.

The Washington Post notes that the case before the Fifth Circuit, initially brought in Texas, is not expected to go to the Supreme Court because it is “ex