Court issues surveillance smack-down to Justice Department

No cell phone location tracking without probable cause

From the Electronic Frontier Foundation (EFF):
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Agreeing with a brief submitted by EFF, a federal judge forcefully rejected the government's request to track the location of a mobile phone user without a warrant.

Strongly reaffirming an earlier decision, Federal Magistrate James Orenstein in New York comprehensively smacked down every argument made by the government in an extensive, fifty-seven page opinion issued this week. Judge Orenstein decided, as EFF has urged, that tracking cell phone users in real time required a showing of probable cause that a crime was being committed. Judge Orenstein's opinion was decisive, and referred to government arguments variously as "unsupported," "misleading," "contrived," and a "Hail Mary."

"This is a true victory for privacy in the digital age, where nearly any mobile communications device you use might be converted into a tracking device," said EFF Staff Attorney Kevin Bankston. "Combined with a similar decision this month from a federal court in Texas, I think we're seeing a trend--judges are starting to realize that when it comes to surveillance issues, the DOJ has been pulling the wool over their eyes for far too long."

Earlier this month, a magistrate judge in Texas, following the lead of Orenstein's original decision, published his own decision denying a government application for a cell phone tracking order. That ruling, along with Judge Orenstein's two decisions, revealed that the DOJ has routinely been securing court orders for real-time cell phone tracking without probable cause and without any law authorizing the surveillance.

"The Justice Department's abuse of the law here is probably just the tip of the iceberg," said EFF Staff Attorney Kurt Opsahl. "The routine transformation of your mobile phone into a tracking device, without any legal authority, raises an obvious and very troubling question: what other new surveillance powers has the government been creating out of whole cloth and how long have they been getting away with it?"

The government is expected to appeal both decisions and EFF intends to participate as a friend of the court in each case.

For the full text of Judge Orenstein's new opinion, and the similar Texas opinion:
http://www.eff.org/legal/cases/USA_v_PenRegister