{"id":4609,"date":"2011-03-12T12:12:51","date_gmt":"2010-09-01T07:12:58","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2010-09-01T07:12:58","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=4609","title":{"rendered":"E.D.N.Y.: Using cell phone as a tracking device requires PC under Fourth Amendment"},"content":{"rendered":"

In a fascinating opinion, a USMJ issues an order (free copy here in a blog<\/a>) that probable cause must be shown for tracking information from a cell phone. The order shows how the legal landscape has changed in recent years. In re The United States for an Order Authorizing the Release of Historical Cell-Site Info., 736 F. Supp. 2d 578 (E.D. N.Y. 2010):<\/p>\n

The United States seeks an order pursuant to 18 U.S.C. \u00a7 2703(c)-(d) (the “Stored Communications Act” or “SCA”), directing Sprint Nextel to disclose, with respect to all calls and text messages to and from a certain mobile telephone over a period of 58 days, all “recorded information identifying the base station towers and sectors that received transmissions from” that telephone. Docket Entry (“DE”) 1 at 1. The government has proffered “specific and articulable facts showing that there are reasonable grounds to believe that the information sought is relevant and material to an ongoing criminal investigation.” Id. \u00b6 2. The government also takes the position that the proffered facts establish “probable cause” sufficient to permit the issuance of a warrant for historical cell-site information pursuant to Federal Rule of Criminal Procedure 41, id. at 2 n.1, but it nevertheless has expressly declined to seek such relief, preferring instead to rely exclusively on the SCA. For the reasons set forth below, I deny the government’s application on the ground that the Fourth Amendment requires the government to obtain a warrant, based on a showing of probable cause on oath or affirmation, in order to secure the information it seeks.<\/p>\n

. . .<\/p>\n

What is the significance of the conclusion that a cell phone acts as a tracking device when it transmits information about its location? The significance is that if cell phones squarely meet the definition of “tracking devices” it is time to stop treating them as something else, at least when the Government seeks to use them to track a person’s movements. Rule 41 contains express procedures governing tracking device warrants, and those procedures need to be followed with regard to future requests for CSLI. This means several things. First, in past applications, the Government has taken the position that it has no obligation to provide notice of the tracking to the cell phone user, as its notice obligation was met by service of the order on the telecommunications provider from whom it received the CSLI. This does not meet the requirements of Rule 41, which provides that when a tracking device warrant is authorized, “the officer must serve a copy of the warrant on the person who was tracked or whose property was tracked.” FED. R. CRIM. P. 41(f)(2)(C). 19 Thus, warrants seeking CSLI must meet this obligation of Rule 41. Similarly, a return must be filed, as with all other warrants. FED. R. CRIM. P. 41(f)(2)(B).<\/p><\/blockquote>\n

[I estimate that there were about 20 posts on other websites about this case in the last two days. I had to get to court yesterday and did not get to post until today.]<\/p>\n","protected":false},"excerpt":{"rendered":"

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