Phone location data privacy issue hits federal court Tuesday

The U.S. government will be taking a second crack Tuesday at overturning a lower court ruling that's preventing police from obtaining cell phone location records from two wireless carriers without a search warrant.

Now before the U.S. Court of Appeals in New Orleans, the government's attempt to obtain 60 days of records from the carriers as part of a "routine" law enforcement investigation was previously rebuffed by a magistrate judge in a federal district court in Texas.

The Texas judge ruled that a warrant was necessary to obtain the information because the data was protected by the Fourth Amendment to the U.S. Constitution, which protects an individual's privacy.

In papers filed with the appeals court, the government is arguing that the Fourth Amendment doesn't apply to location records archived by carriers because they are business records.

The courts have ruled that business records are subject to something called "the third-party doctrine." That doctrine excludes from Fourth Amendment protections records that an individual has neither ownership nor possession of.

In addition, the government is arguing consumers should not have a "reasonable expectation" that their carriers will keep records containing location information private. "Reasonable expectation" is one of the measures established by the courts to determine if Fourth Amendment rights can be asserted by a person.

A number of civil liberties groups support the district court's ruling in the Texas case. They include the Center for Democracy and Technology (CDT),  National Association of Criminal Defense Lawyers (NACDL), American Civil Liberties Union (ACLU) Foundation, ACLU Foundation of Texas, and the Electronic Frontier Foundation (EFF).

"In this case—and in many others across the U.S.—the government claims that cell phone users give up their privacy rights because they have voluntarily disclosed their physical location to the cell phone providers every time a phone connects to the provider's cell tower," the EFF, which is expected to present oral arguments on Tuesday, said in a statement.

"Government attorneys argue this means investigators do not need a warrant to get access to location history," the EFF statement says. "However, this theory undermines privacy in nearly any networked communication."

While the U.S. Supreme Court has ruled that police need a warrant to attach a GPS device to a motor vehicle, it's been left up to the lower courts to decide if GPS location data accumulated by carriers requires similar protection, an issue that they haven't been able to agree on.

For example, a federal appeals court in Cincinnati ruled in August that cell phone location data isn't protected by Fourth Amendment privacy rights. The defendant in the case before the court "had no expectation of privacy...just as the driver of a getaway car has no expectation of privacy in the particular combination of colors of the car’s paint," Judge John Rogers wrote for the court.

Warrantless tracking of cell phones is a growing trend in law enforcement, the American Civil Liberties Union reported earlier this year. The ACLU, through a survey, found that of more than 90 police departments that said they tracked cell phone use, only six obtained warrants to do so.

Moreover, U.S. Sen. Ed Markey (D-Massachusetts) revealed in July that information he obtained from the major carriers showed that law enforcement made more than 1.3 million request for cell phone records in 2011.

The ambiguity surrounding the location records issue has prompted some states to address the uncertainty. California's Assembly, for example, approved in August a bill that would bar law enforcement officers from obtaining location data from a handset without a warrant.

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