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Posted by on Nov 20, 2011 in Science & Technology | 3 comments

Texas Judge To Feds: Cellphone Tracking Data Protected By The Constitution

It was a Veteran’s Day present to all Americans who carry a cellphone, issued with little fanfare and almost no mainstream media attention.

On Nov. 11, 2011, U.S. District Court Judge Lynn N. Hughes of the Southern District of Texas made it clear that cellular telephone services cannot be compelled to share data that reveal location without seeing a warrant based on probable cause.

When the government requests records from cellular services, the data disclosing the location of the telephone at the time of particular calls may be acquired only by a warrant issued on probable cause…. These data are constitutionally protected from this intrusion. (Applications of the USA, November 2011, pdf)

Judge Hughes is referencing a demand from the U.S. Attorney’s Office in Houston for data associated with cellphone accounts. In 2010, U.S. Magistrate Judge Stephen Smith denied three separate warrantless requests for cellphone records, ruling that the request violated the Fourth Amendment because of a reasonable expectation of privacy. Hughes concurred with that ruling.

Catherine Crump, a staff attorney with the ACLU, said cellphones create a record of people’s movements, which can reveal private information about the phone’s user as well as information about that person’s friends and family.

“This is precisely the sort of private, sensitive information that the government should not be able to access without getting a warrant,” Crump said. “The Fourth Amendment is designed to protect people from unreasonable searches and seizures. How courts interpret that amendment must keep pace with new technologies if its protections are to have any meaning.”

You’ve probably never heard of the law in question, The Stored Communications Act (SCA), part of the Electronic Communications Privacy Act, passed Congress in 1986 (and was signed by Reagan) as a form of consumer protection. Imagine that! Congress and the White House protecting citizens from corporate behavior. From the EFF:

The Stored Communications Act, 18 U.S.C. § 2701 et seq., (the “SCA”) regulates when an electronic communication service (“ECS”) provider may [disclose] the contents of or other information about a customer’s emails and other electronic communications to private parties. Congress passed the SCA to prohibit a provider of an electronic communication service “from knowingly divulging the contents of any communication while in electronic storage by that service to any person other then the addressee or intended recipient.” S.Rep. No. 99-541, 97th Cong. 2nd Sess. 37, reprinted in 1986 U.S.C.C.A.N. 3555, 3591. […] Section 2703 regulates government access to stored communications or transaction records in the hands of third party service providers.

Under SCA, a judge may deny an application for a court order and require, instead, that the law enforcement agency procure a search warrant based on probable cause (pdf).

More from the Wall Street Journal:

Judge Hughes’ decision comes as the U.S. government is facing increasing judicial challenges to its practice of obtaining information about the location of individuals without a search warrant. Last week, the Supreme Court heard oral arguments in a case where the government placed a GPS tracking device under a vehicle and monitored the driver’s movements for a month without a search warrant.


Since 2005, more than a dozen magistrate judges have written opinions denying applications for court orders to track cellphones without search warrants. The nation’s roughly 500 magistrate judges handle applications for search warrants and other types of electronic surveillance in federal courts.

Lynn joined the court in 1985; he was a nominee of President Ronald Reagan.

The ACLU, ACLU of Texas and Electronic Frontier Foundation submitted an amicus curiae brief, which the Judge referenced in his opinion.

The story got very little media play: Google News Search and Bing News Search.

Recent decisions:

  • November 2011, Application of the US, Texas U.S. District Court confirmed Magistrate ruling that warrantless requests for cellphone data are unconstitutional
  • August 2011, New York Federal District Court Judge Judge Nicholas G. Garaufis ruled that a warrant is required before law enforcement can access stored cell site location information generated by the operation of a cellular phone.
  • 2010, Warshak (6th Circuit, pdf) – court wrote that a search warrant was needed to obtain emails stored by email providers; “Warshak enjoyed a reasonable expectation of privacy in his email.”
  • 2010, Maynard (DC Circuit) – before using GPS on vehicles, police must obtain a warrant

Initial article at Google+.

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