August 31, 2011
Last Monday, a federal judge in the Eastern District of New York ruled that the government needs a search warrant to access cell-phone location data.
The ruling by Judge Nicholas Garaufis denied an application from the Eastern District U.S. Attorney’s Office to compel cellular carrier Verizon Wireless to release 113 days of cell-site-location records of a criminally-indicted man suspected of attempting to jump bail.
What this means is that the government now has a higher burden (at least for the courts following Garaufis’s lead) to obtain the records.
The lower burden, articulated in the Stored Communications Act (18 U.S.C. § 2703), only required the government to show…
“specific and articulable facts showing that there are reasonable grounds to believe that…the records or other information sought are relevant and material to an ongoing criminal investigation.”
Boiled down, that simply means that the records have to actually pertain to a criminal investigation, which, as one can imagine, is a pretty easy standard to meet.
Conversely, pursuant to Federal Rules of Criminal Procedure Rule 41, a warrant requires a showing of probable cause (most commonly, “a reasonable belief that a crime has been committed”).
Aside from being an obviously more difficult standard to meet, obtaining a warrant is more procedurally burdensome than the earlier mentioned court order.
The ruling is significant for many reasons.
First, it may signal the reversal of the trend allowing warrantless access to such records.
While the same court had previously approved such applications by the government in the past, Judge Garaufis cited several recent developments in case law that necessitates the denial of the current application.
The opinion cited these and other opinions to explain exactly why access to cell-site-location records requires a warrant.
Without getting too deeply into those cases, the opinion justified its reasoning on the premise that individuals have a reasonable expectation of privacy in regards to the data.
While past cases have only looked at individual calls and justified warrantless searches based on that analysis, this opinion looked at all of the calls in the aggregate, and analogized it to the government monitoring someone’s every movement over a long period of time.
If his comments in the opinion about the dangers of an “Orwellian intrusion” are any indication, Judge Garaufis believes that Fourth Amendment protections need to evolve along with technology to err on the side of protecting people’s privacy.
Actually, he also explicitly calls on other courts to do just that in the opinion.
If other courts take up his call, where could that trend lead?
Not surprisingly, that’s a complicated question.
In short, though, the trend would bring increased privacy protections to gray areas of newer technologies, and fill in the gaps of protection left by Electronic Communications Privacy Act, an arguably outdated law passed in 1986.
It may potentially lead to an expectation of privacy for an individual’s Facebook account, creating difficulties for law enforcement in obtaining account information where currently there is virtually none.
Either way, these cases are only going to get more common, so we’ll be able to see which way future cases go very soon.