According to rights group the Electronic Frontier Foundation
(EFF), which submitted a friend-of-the-court brief in respect of a
case being heard by the US District Court for the Eastern District
Court of New York, the Justice Department had been seeking to
monitor the location of a particular mobile phone, and to obtain
details of numbers called from and calling to that phone.
In August, Magistrate Judge James Orenstein granted the bulk of
the Government's requests, on the grounds that they were relevant
to the investigation. However, the judge then denied the location
monitoring application, on the grounds that it turned a mobile
phone into a tracking device – for which a higher standard of proof
is required.
The Justice Department appealed, arguing that courts have
granted real-time phone tracking requests on many previous
occasions, without requiring that the Government show probable
cause that a crime was being committed.
It pointed to two statutes which, it said, taken together showed
that this level of proof was not required.
Judge Orenstein disagreed, ruling last week that: "When the
government seeks to turn a mobile telephone into a means for
contemporaneously tracking the movements of its user, the
delicately balanced compromise that Congress has forged between
effective law enforcement and individual privacy requires a showing
of probable cause.”
Earlier in October a magistrate judge in Texas, following the
lead of Orenstein's original decision, denied another Government
application for a cell phone tracking order.
That ruling, along with Judge Orenstein's two decisions, reveals
that the Department of Justice has routinely been securing court
orders for real-time cell phone tracking without probable cause and
without any law authorising the surveillance, says the EFF.
"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.
"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. "I
think we're seeing a trend – judges are starting to realise that
when it comes to surveillance issues, the DOJ has been pulling the
wool over their eyes for far too long."
