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3rd Circuit Gives Judges Discretion to Demand Warrants for Cell Phone Tracking

Posted Sep 8, 2010 10:03 AM CDT
By Debra Cassens Weiss

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A federal appeals court has ruled that judges have statutory authority to demand a showing of probable cause when the government seeks cell phone location data to track criminal suspects.

The Philadelphia-based 3rd U.S. Circuit Court of Appeals rejected a Justice Department argument that judges are required to issue orders giving the government access to the data on a showing that it is material and relevant to an ongoing probe, the Legal Intelligencer reports. The New York Times and the Associated Press also have stories.

While judges have the authority to demand a probable cause warrant, they should do so “sparingly,” the opinion (PDF) said. The court also found that cell phone location data may trigger Fourth Amendment concerns, rejecting a DOJ argument that information voluntarily shared with phone companies is not constitutionally protected.

AP says the ruling is a victory for electronic privacy groups. The Electronic Frontier Foundation and the American Civil Liberties Union had filed an amicus brief (PDF) opposing the government’s position in the case.

EFF covered the case on its Deeplinks blog. “Although the court did not definitively rule on the Fourth Amendment status of cell phone location information,” the EFF says, “it made clear that under some circumstances the privacy of such data could be constitutionally protected, and that judges have the discretion to require a warrant to avoid potentially unconstitutional seizures of location data.”

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