Federal court to hear cell phone tapping case

By Tony Romm - 02/11/10 10:35 AM ET

The Justice Department on Friday will begin making its case for new standards allowing law enforcement to use cell phone location data in criminal investigations.

Its case before the U.S. 3rd Court of Appeals in Philadelphia could provide more clarity to a bevy of murky cell phone location tapping laws, but it is sure to upset those who dread any federal encroachment in the realm of digital communications.



At issue is a recent request from the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) to tap stored phone location data for suspects the agency believed were planning to traffic drugs.

A magistrate court in Pennsylvania ruled the bureau had to first obtain a warrant to collect that location data, which cell phone companies can ascertain with the help of their signal towers.

The judge at the time said the department's request was without probable cause — the tapping was to further an investigation, not because a crime was certain to be committed — and stressed the location information was incredibly personal and private. She thus ruled the Justice Department had to present a far more compelling case to justify the cell phone location tapping.

But the Obama administration's Justice Department has since appealed that decision, and it plans to argue on Friday that cell phones have no "reasonable expectation of privacy."

The department argues that the "records provide only a very general indication of a user's whereabouts at certain times in the past, the requested cell-site records do not implicate a Fourth Amendment privacy interest," according to the appeal.

Ultimately, that sets up the Justice Department in a fierce showdown with a handful of watchdog groups, including the American Civil Liberties Union, the Electronic Frontier Foundation (EFF), the Center for Democracy and Technology and the University of San Francisco. Together, they argue that Americans do not willingly relinquish control of their cell phone's location data — a fact that should warrant exceptional protection of their privacy rights, even in investigations.


"This is a critical question for privacy in the 21st century," Kevin Bankston, an EFF attorney, told CNET. "If the courts do side with the government, that means that everywhere we go, in the real world and online, will be an open book to the government, unprotected by the Fourth Amendment."