Warrant Requirement for Historical Cell Phone Location Data
posted by Thomas Clancy
In an article by Ellen Nakashima, the Washington Post this morning reports that a federal judge in the Western District of Pennsylvania has ruled that the government must obtain a warrant based on probable cause of criminal activity before directing a wireless provider to turn over records that show where customers used their cellphones. This is apparently the first opinion by a federal district court on the issue.
To view the entire article, go here.
September 12, 2008 at 9:02 am
Posted in: Criminal Procedure
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Responses (2)
Paul Ohm - September 12, 2008 at 2:00 pm
The article ends with this: “For more precise cellphone location, such as by Global Positioning System technology in phones, Justice Department attorneys say access requires a warrant.”
Did DOJ attorneys really say that? Did Ellen Nakashima (the article’s author who writes a lot of interesting articles in this field) get this from an interview or from the government’s brief?
I don’t read the government’s brief to be conceding this point, at least not for historical tracking. I’m willing to bet that if a provider were someday to hand over historical GPS location tracking data, DOJ would write a forceful brief arguing that historical location tracking by a provider falls within Miller and Smith regardless of the precision with which location is revealed.
I’m not expressing an opinion about the correct answer to the legal question; I’m just wondering about the accuracy of the report.
eck - September 12, 2008 at 3:03 pm
As noted in the government’s appeal to the district court, this is not the first court to address the question. Two other district courts have explicitly endorsed DOJ’s position that historical tower/sector records may be compelled using a section 2703(d) order. See In re Applications, 509 F. Supp. 2d 76 (D. Mass. 2007); In re Application, 2007 WL 3036849 (S.D. Tex. Oct. 17, 2007).
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