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<div class="">July 30, 2013</div>
<h1>Warrantless Cellphone Tracking Is Upheld</h1>
<h6 class="">By
<span>
<a href="http://topics.nytimes.com/top/reference/timestopics/people/s/somini_sengupta/index.html" rel="author" title="More Articles by SOMINI SENGUPTA"><span>SOMINI SENGUPTA</span></a></span></h6>
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<p>
In a significant victory for law enforcement, a federal appeals court on
Tuesday said that government authorities could extract historical
location data directly from telecommunications carriers without a search
warrant. </p>
<p>
The closely watched case, in the United States Court of Appeals for the
Fifth Circuit, is the first ruling that squarely addresses the
constitutionality of warrantless searches of historical location data
stored by cellphone service providers. Ruling 2 to 1, the court said a
warrantless search was “not per se unconstitutional” because location
data was “clearly a business record” and therefore not protected by the
Fourth Amendment. </p>
<p>
The ruling is likely to intensify legislative efforts, already bubbling in Congress and in the <a title="Times blog about warrants for data. " href="http://bits.blogs.nytimes.com/2013/07/02/with-montanas-lead-states-may-demand-warrants-for-cellphone-data/">states</a>, to consider measures to require warrants based on probable cause to obtain cellphone location data. </p>
<p>
The appeals court ruling sharply contrasts with a New Jersey State Supreme Court <a title="Times article about the court opinion. " href="http://www.nytimes.com/2013/07/19/nyregion/new-jersey-supreme-court-restricts-police-searches-of-phone-data.html?pagewanted=all">opinion</a>
in mid-July that said the police required a warrant to track a
suspect’s whereabouts in real time. That decision relied on the New
Jersey Constitution, whereas the ruling Tuesday in the Fifth Circuit was
made on the basis of the federal Constitution. </p>
<p>
The Supreme Court has yet to weigh in on whether cellphone location data
is protected by the Constitution. The case, which was initially brought
in Texas, is not expected to go to the Supreme Court because it is “ex
parte,” or filed by only one party — in this case, the government.
</p>
<p>
But the case could renew calls for the highest court to look at the
issue, if another federal court rules differently on the same question.
And <a title="ACLU article about tracking." href="http://www.aclu.org/blog/technology-and-liberty-national-security/aclu-challenges-67-days-warrantless-cell-phone">two other</a> federal cases involving this issue are pending. </p>
<p>
“The opinion is clear that the government can access cell site records
without Fourth Amendment oversight,” said Orin Kerr, a constitutional
law scholar at George Washington University Law School who filed an <a title="The brief (PDF). " href="http://www.volokh.com/wp-content/uploads/2012/02/Kerr-Amicus-No-11-20884.pdf">amicus brief</a> in the case. </p>
<p>
For now, the ruling sets an important precedent: It allows law
enforcement officials in the Fifth Circuit to chronicle the whereabouts
of an American with a court order that falls short of a search warrant
based on probable cause. </p>
<p>
“This decision is a big deal,” said Catherine Crump, a lawyer with the
American Civil Liberties Union. “It’s a big deal and a big blow to
Americans’ privacy rights.” </p>
<p>
The group <a title="Times article on the survey." href="http://www.nytimes.com/2012/04/01/us/police-tracking-of-cellphones-raises-privacy-fears.html?pagewanted=all"> reviewed records</a>
from more than 200 local police departments last year, concluding that
the demand for cellphone location data had led some cellphone companies
to develop “surveillance fees” to enable police to track suspects.
</p>
<p>
In reaching its decision on Tuesday, the federal appeals court went on
to agree with the government’s contention that consumers knowingly give
up their location information to the telecommunications carrier every
time they make a call or send a text message on their cellphones.
</p>
<p>
“That means it is not protected by Fourth Amendment when the government
goes to a third-party service provider and issues something that is not a
warrant to demand production of those records,” said Mark Eckenwiler, a
former Justice Department lawyer who worked on the case and is now with
the Washington law firm Perkins Coie. “On this kind of historical cell
site information, this is the first one to address the core
constitutional question.” </p>
<p>
Historical location data is crucial to law enforcement officials. Mr.
Eckenwiler offered the example of drug investigations: A cellphone
carrier can establish where a suspect met his supplier and how often he
returned to a particular location. Likewise, location data can be vital
in establishing people’s habits and preferences, including whether they
worship at a church or mosque or whether they are present at a political
protest, which is why, civil liberties advocates say, it should be
accorded the highest privileges of privacy protection. </p>
<p>
The decision could also bear implications for other government efforts
to collect vast amounts of so-called metadata, under the argument that
it constitutes “business records,” as in the National Security Agency’s
collection of Verizon phone records for millions of Americans. </p>
<p>
“It provides support for the government’s view that that procedure is
constitutional, obtaining Verizon call records, because it holds that
records are business records,” said Mr. Kerr, of George Washington
University. “It doesn’t make it a slam dunk but it makes a good case for
the government to argue that position.” </p>
<p>
An important element in Tuesday’s ruling is the court’s presumption of
what consumers should know about the way cellphone technology works. “A
cell service subscriber, like a telephone user, understands that his
cellphone must send a signal to a nearby cell tower in order to
wirelessly connect his call,” the court ruled, going on to note that
“contractual terms of service and providers’ privacy policies expressly
state that a provider uses a subscriber’s location information to route
his cellphone calls.” </p>
<p>
In any event, the court added, the use of cellphones “is entirely voluntary.” </p>
<p>
The ruling also gave a nod to the way in which fast-moving technological
advances have challenged age-old laws on privacy. Consumers today may
want privacy over location records, the court acknowledged: “But the
recourse for these desires is in the market or the political process: in
demanding that service providers do away with such records (or
anonymize them) or in lobbying elected representatives to enact
statutory protections.” </p>
<p>
Cellphone privacy measures have been proposed in the Senate and House
that would require law enforcement agents to obtain search warrants
before prying open location records. Montana recently became the first
state to require a warrant for location data. Maine soon followed.
California passed a similar measure last year but Gov. Jerry Brown, a
Democrat, vetoed it, saying it did not strike what he called the right
balance between the demands of civil libertarians and the police.
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