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No warrant is needed for records showing general location of prior cellphone calls, 5th Circuit says

Posted Aug 1, 2013 6:35 AM CDT
By Debra Cassens Weiss

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A federal appeals court has ruled that the federal government doesn’t need a warrant to obtain historical data showing the general location of cellphone calls.

The New Orleans-based 5th U.S. Circuit Court of Appeals upheld the constitutionality of a provision of the Stored Communications Act that allows the government to obtain court orders for telecommunications records. The law says the government must offer "specific and articulable facts" showing reason to believe the material sought is relevant and material to a criminal investigation. The New York Times, the National Law Journal and the Wall Street Journal Law Blog (sub. req.) have stories on the opinion (PDF) issued Tuesday. The ABA has a media alert summarizing the opinion.

Catherine Crump, a lawyer with the American Civil Liberties Union, told the Times that the decision is “a big deal and a big blow to Americans’ privacy rights.”

The appeals court said the historical cell-site information is a business record that is not protected by the Fourth Amendment. Cellphone users are aware that they are disclosing their location information every time they make a phone call, according to the majority opinion by Judge Edith Brown Clement. “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,” Clement said.

The court ruled in a government request for 60 days of cell-site data for calls made on three specific phones.

The New Jersey Supreme Court reached the opposite conclusion in a July ruling that was based on the state’s constitution.

The Criminal Lawyer Blog took issue with media coverage that said the opinion allowed police to track cellphones without a warrant. “The government wanted to get historical data of cell sites that were used by certain phones,” the blog says. “Not real-time data. Not tracking. …

“Cell-site data does not contain the contents of your communications. What you’re saying and texting and emailing and posting are not being accessed. It only says what cell tower your phone was using at the time.”

How would the issue fare at the U.S. Supreme Court? A Slate story suggests Justice Samuel A. Alito Jr. could join with the court's four liberal justices to give Fourth Amendment protection to cell-site data.

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