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Using cell phone records to track down kidnappers in an emergency situation is one thing. But what about allowing federal investigators to monitor a person via his or her cell phone without having to provide evidence of criminal activity? That question has got privacy advocates on high alert as �several courts in recent months have received requests from the U.S. Department of Justice to track people through their cell phones with no showing of probable cause. Of the four such motions made, judges in New York, Texas and Maryland denied the DOJ’s requests, stating that the government lacked statutorial authority to track cell phone location without a warrant. But most recently, on Dec. 20, a fourth judge, in New York, ruled in the government’s favor, finding that the USA Patriot Act and federal wiretapping laws allow police to track cell phone signals without showing probable cause. In re Application for the U.S. for an Order for Disclosure of Telecommunication: Opinion and Order Authorizing Use of Pen Register and Trap Trace, 05 Mag. 1763 (S.D.N.Y.). “I’m surprised that they were able to convince a magistrate judge to rule in their favor. This would constitute a very new and troubling intrusion into the privacy rights of citizens,” said Jonathan Turley, a constitutional law professor at George Washington University Law School. “What’s particularly dangerous about this authority is that it’s targeting the most popular form of communication for citizens after the Internet,” said Turley, who litigates national security cases. “So if the government can start to track or monitor cell phones without showing probable cause, it would create a massive hole in our surveillance laws.” A VOLUNTARY TRANSMISSION? Assistant U.S. Attorney Thomas Brown, who handled the most recent case in the Southern District of New York, declined comment. The DOJ also declined comment. In court documents, Brown defended the government’s tactics, stating that “cell phone user voluntarily transmits a signal to the cell phone company, and thereby ‘assumes the risk’ that the cell phone provider will reveal to law enforcement the cell-site information. This is not a privacy expectation that society is prepared to view as reasonable.” Attorney Michael Sklaire, a former U.S. attorney who also worked in the electronic surveillance branch at the Justice Department, supports the use of cell phone tracking by law enforcement, calling it “an effective tool” for investigators. “Instead of requiring hundreds of agents looking for these people, you can use the technology to find where people are,” said Sklaire, now with Womble Carlyle Sandridge & Rice’s Washington office. “It’s essential for the government to have this kind of information. It’s essential for law enforcement to quickly be able to obtain this information. We hope that they don’t abuse it,” said Sklaire, who spent years defending wiretap usage by federal investigators. He said that the government’s cell phone tracking practice does not run afoul of any constitutional requirements because it’s only locating people, not monitoring them. He said that information about �location is not something you need probable cause for. A key problem facing judges who are dealing with tracking requests is that the law hasn’t kept pace with technology, Sklaire said. For example, the law is unclear as to what you need a search warrant for, or a court order for, or a subpoena for. He said locating information with �regard to cell phones falls between the cracks. “The law hasn’t caught up to the technology, so magistrates are trying to figure out how to fit the new technology within the existing statutes,” he said. Meanwhile, privacy advocates believe that cell phone tracking without a showing of probable cause has �surfaced now because a New York judge released in August what is believed to be the first published opinion on the matter. U.S. Magistrate Judge James Orenstein wrote in his opinion that “[i]t is my understanding based on anecdotal information that magistrate judges in other jurisdictions are being confronted with the same issue but have not yet achieved consensus on how to resolve it. If the government intends to continue seeking authority to obtain cell site location information in aid of its criminal investigations, I urge it to seek appropriate review of this order so that magistrate judges will have more authoritative guidance in determining whether controlling law permits such relief on the basis of the relaxed standard set forth [under federal law], or instead requires �adherence to the more exacting standard of probable cause.” In re Application of the United States for an Order ( 1) Authorizing Use of a Pen Register and a Trap and Trace Device and ( 2) Authorizing Release of Subscriber Information and/ or CellSite Information, 2005 WL 2739208 (E.D.N.Y. 2005). According to the Electronic Frontier Foundation, a privacy advocacy group that has been fighting the DOJ’s cell phone tracking requests for the last six months, privacy advocates quickly picked up Orenstein’s published opinion. Shortly thereafter, two more judges � one in Texas and one in Maryland � published similar opinions. “If it were not for these judges who realized that the wool was pulled over their eyes in deciding to publish their decisions to warn the public, we would never have known about this,” said Kevin Bankston, a staff attorney with the EFF in San Francisco. Currently, Bankston is frustrated that the Justice Department has chosen not to appeal any of the decisions. A higher court ruling could set some precedent and give other judges some guidance, he said. He added that the EFF cannot appeal because the cases were ex parte proceedings: The government’s side only was heard by the judge. Meanwhile, Bankston said that the public is at the mercy of judges who may or may not choose to publish future opinions on this topic. “Unless and until some other judge makes public that he’s looking for a briefing and hasn’t decided a case yet, we’re not going to know about these cases,” Bankston said. Bankston explained that the DOJ is using two statutory authorities contained in the 1986 Electronic Communications Privacy Act to make its case for warrantless cell phone tracking. They are the Stored Communication Act, which controls government access to stored communications and records, and the pen register and trap and trace statute, which allows for surveillance devices to capture the phone numbers of outgoing and incoming calls. Individually, Bank�ston said, neither statutory authority allows for cell phone tracking without a warrant. But the government has argued that, combined, the two statutory author�ities allow for such a use, he said, adding that he disagrees with that argument, as did three magistrate judges. In the most recent cell phone tracking decision, U.S. Magistrate Judge Gabriel Gorenstein, in the Southern District of New York, ruled on Dec. 20, 2005, that because the cell phone user’s location is available to police only when a call is in progress, and because the location �information is only a rough estimate, such tracking is permissible under the Fourth Amendment. The Federal Defenders of New York, a government-funded defender group, filed a brief in that case, arguing that real-time tracking of cell phones is a privacy violation. “My biggest concern is that they’re essentially getting something that will map people’s movements,” said Yuan�chung Lee, the assistant federal defender who filed the amicus brief. Lee believes that the government will continue to track �cell phones without showing probable cause until it tries to use the evidence in a case against somebody, and the person challenges it. “I assume it’s �coming down the road and I imagine it will come very quickly,” Lee said of cell phone litigation. “Technology is getting better and better. And the government is never shy in using aggressive means in getting what it needs. They’re going to use it to prove where somebody was, and then we’ll have real litigation.” CONGRESSIONAL ACTION? Kraig Marini Baker, who counsels companies on privacy-related issues at Davis Wright Tremaine in Seattle, said the cell phone tracking debate highlights the need for Congress to revisit and redefine wiretapping statutes. He expects that legislators will soon get pressure from two sides: law enforcement seeking easier access to hard-to-get data, and consumers fighting to protect their privacy. Baker believes that Congress will draft some new law that will restrict �access to technological data. But, he added, “It will probably have a backdoor to law enforcement.” Tresa Baldas is a reporter with The National Law Journal, a Recorder affiliate based in New York City.

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