Legal Commentary

Court Rules Probable Cause Needed to Track Cell Phones

By TChris

A couple of months ago, TalkLeft asked whether the government is tracking your cell phone's movement. We know the government asks cell phone service providers to turn over location records that show the coverage area in which a subscriber's cell phone was transmitting on specified days. The question is whether the police need to show probable cause to obtain a court order for production of those records.

[A recent] ruling (.pdf) from Judge Terrence McVerry of the Western Pennsylvania U.S. District Court deals a blow to investigators who have been getting cellphone location data on in the past simply by proving to a judge that the information would be relevant to an investigation. That's the same standard used to force a telephone company to reveal the name and address of a subscriber.

Judge McVerry affirmed a well reasoned decision (.pdf) by Magistrate Judge Lisa Pupo Lenihan. The decision recognizes that "the ex parte nature of the proceedings, the comparatively low cost to the Government of the information requested, and the undetectable nature of a CSP’s electronic transfer of such information, render these requests particularly vulnerable to abuse." [more...]

As the linked article notes, "other judges have disagreed with the logic of protecting this data as if it were very sensitive." Magistrate Lenihan and Judge McVerry got it right for all the reasons cited in Lenihan's scholarly decision.

Full post as published by TalkLeft on September 18, 2008 (boomark / email).