Federal court approves warrantless tracking of cell phone users

A ruling this week in a United States appeals court means officers of the law can legally and physically track down suspects based off of cell phone data without ever obtaining a warrant.

A 2-1 decision from the United States Court of Appeals for the Fifth Circuit on Tuesday means law enforcement needn’t prove probable cause when asking a telecom company for location data that could be used to pinpoint suspected criminals.

The verdict overturns a ruling made in 2011 by a magistrate judge from Houston, Texas who said federal authorities weren’t able to compel telecoms for 60 days’ worth of cell phone records without a warrant.

Following that ruling from US District Judge Lynn Hughes, the federal government filed an appeal asking the Fifth Circuit to step-in. On Tuesday, justices there overturned Hughes’ decision and said cell phone companies and their customers had no Fourth Amendment protected right to refute the government’s request for information.

A cell subscriber, said the appeals court, "like a telephone user, understands that his cellphone must send a signal to a nearby cell tower in order to wirelessly connect his call." That data, the court concluded, is thus “clearly a business record” and can be collected by investigators bypassing what would otherwise require a warrant.

“We understand the cell phone users may reasonably want their location information to remain private,” wrote the court. “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.”

Had the court ruled otherwise, federal investigators could be told they must show a judge evidence of probable cause to obtain a warrant for location data. Instead, however, the appeals court agreed that only a substantially easier to acquire court order could be used to compel telecoms for that data.

Unlike a search warrant, a court order in such a case only requires authorities to argue there are reasonable grounds that the information is relevant to an investigation.

Privacy advocates attacked Tuesday’s ruling, including George Washington University law professor, who filed an amicus brief in the case opposing the side the appeals court took.

“The opinion is clear that the government can access cell site records without Fourth Amendment oversight,” Kerr told the New York Times this week.

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

But while the appeals verdict impacts how federal investigations will be conducted for now, recent legislation adopted in two US states have taken the first steps towards installing local laws that limit the ability to collect location data. Both Montana and New Jersey approved legislation in June and July, respectively, saying a search warrant is required by state investigators in order to collect cell phone location data.