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

parte,” or filed by only one party— in this case, the government.

Still, the case will no doubt intensify calls for the highest court to examine the issue, if another federal court rules differently on the same question. There are two other federal cases involving this issue pending.

“The opinion is clear that the government can access cell site records without Fourth Amendment oversight,” Orin Kerr, a constitutional law scholar at George Washington University Law School who filed an amicus brief in the case, told the Times.

The Fifth Circuit Appeals Court’s decision means that law enforcement agencies in the Fifth Circuit may chronicle the whereabouts of an American with a court order that falls short of a search warrant based on probable cause.

“This decision is a big deal,” said Catherine Crump, a lawyer with the American Civil Liberties Union. “It’s a big deal and a big blow to Americans’ privacy rights.”

In its Tuesday decision, the federal appeals court agreed with the government’s argument that consumers knowingly give up their location information to the telecommunications carrier every time they make a call or send a text message on their cellphones.

“That means it is not protected by Fourth Amendment when the government goes to a third-party service provider and issues something that is not a warrant to demand production of those records,” Mark Eckenwiler, a former Justice Department lawyer who worked on the case and is now with the Washington law firm Perkins Coie, told the Times. “On this kind of historical cell site information, this is the first one to address the core constitutional question.”

Historical location data is essential to law enforcement agencies. Eckenwiler pointed to drug investigations: A cellphone carrier can establish where a suspect met his supplier and how often he returned to a particular location.

Kerr noted that the decision could also have implications for other government programs to collect metadata, under the argument that it constitutes “business records,” as in the National Security Agency’s (NSA) collection of Verizon phone records for millions of Americans.

“It provides support for the government’s view that that procedure is constitutional, obtaining Verizon call records, because it holds that records are business records,” Kerr told the Times. “It doesn’t make it a slam dunk but it makes a good case for the government to argue that position.”

The court said that under the Stored Communications Act, authorities have the option of obtaining a court order — which has a lower legal standard than a search warrant. With a court order, authorities only have to demonstrate there are “reasonable grounds” to believe the information would be relevant to an investigation.

The court also noted that consumers should know how cellphone technology works. “A cell service subscriber, like a telephone user, understands that his cellphone must send a signal to a nearby cell tower in order to wirelessly connect his call,” the court ruled, adding that “contractual terms of service and providers’ privacy policies expressly state that a provider uses a subscriber’s location information to route his cellphone calls.”

The court stressed that the use of cellphones “is entirely voluntary.”

The court acknowledged that consumers today may want privacy over location records, “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 anonymize them) or in lobbying elected representatives to enact statutory protections.”

Angela Dodge, a spokeswoman for the U.S. Attorney’s Office in Houston, Texas, which had fought Judge Lynn Hughes’ order, said her office was pleased by Tuesday’s ruling.

“We are gratified that the court found we acted in a manner consistent with the law at the time. We felt we interpreted the law correctly and welcome the agreement of the 5th Circuit,” Dodge said in an emailed statement.