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Government investigators can compel cell phone companies to provide data on the geographic location of their customers on a showing of less than probable cause, a magistrate judge in the Southern District of New York has ruled. The decision issued Tuesday by Magistrate Judge Gabriel W. Gorenstein differs from three other federal rulings in the last four months that required federal investigators to demonstrate probable cause to get data similar to that being sought in the Southern District investigation. The government was seeking the location of the nearest cell phone tower at the start and finish of conversations by a suspect against whom an arrest warrant has been issued. Because the investigation into the sale of illegal contraband is ongoing, the application for the warrant was under seal. The three other recent decisions sought data about a suspect’s whereabouts during a conversation as well as at the beginning and end points. At least one of the other three decisions was seeking global tracking information in addition to the location of the nearest cell phone towers. Global position systems use a process known as triangulation to identify a person’s precise location. Cell phone towers can be as far as 10 miles apart in rural locations. Magistrate Judge Gorenstein ruled that two statutes should be read together as governing investigators’ power to demand tower location data from cell phone companies. The Stored Wire and Electronic Communications and Transactional Records Access Act (18 U.S.C. �2703) sets the applicable standard — the government must offer “specific and articulable facts” showing that the information being sought is “relevant and material to an ongoing criminal investigation,” Gorenstein ruled in In Re Application of the United States of America, 05 Mag. 1763. Because the Stored Wire and Electronic Communications Act applies only to the collection of data about calls already made, Gorenstein looked to a different statute for collection of data on calls made in the future. That statute authorizes the government to ask for data over a period running 60 days into the future. In fact, the application before Gorenstein was to extend the government’s authority for another 60 days since the initial 60-day authorization had expired on Dec. 18. The 60-day authorization is contained in the federal Pen Register statute, 18 U.S. �� 3121-27. Kevin Bankston, an attorney with the Electronic Frontier Foundation, said there is “no support for the government’s hybridization of the two statutes” to find justification for the collection of location data on less than a probable cause standard. The foundation submitted an amicus brief in the case. The three courts that found a probable cause showing necessary said the authority for the searches resided in the government’s general authority to seek warrants in Rule 41 of the Rules of Federal Criminal Procedure. None of the three cases reached the constitutional issue. Gorenstein ruled that as long as only tower location is sought, and not tracking data, the Fourth Amendment prohibition on unreasonable search and seizures did not bar the data collection. The three cases, requiring a probable cause showing, were In re Application for Pen Register, 396 F. Supp.2d 747 (S.D.Tex.); In the Matter of the Application of the United States, 396 F. Supp. 2d 294 (E.D.N.Y.); and Order Authorizing the Installation and Use of Pen Register, 2005 WL 3160860 (D. Md.) The government was represented by Assistant U.S. Attorneys Thomas G.A. Brown and Lauren M. Ouziel. An amicus brief was also submitted by Assistant Federal Defender Yuanchung Lee.

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