Comments on: Warrant Requirement for Historical Cell Phone Location Data http://www.concurringopinions.com/archives/2008/09/warrant_require.html The Law, the Universe, and Everything Tue, 14 Feb 2012 05:18:12 +0000 hourly 1 http://wordpress.org/?v=3.2.1 By: eck http://www.concurringopinions.com/archives/2008/09/warrant_require.html/comment-page-1#comment-47324 eck Fri, 12 Sep 2008 22:03:34 +0000 http://www.solove.org/archives/2008/09/warrant-requirement-for-historical-cell-phone-location-data.html#comment-47324 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. <i>See In re Applications</i>, 509 F. Supp. 2d 76 (D. Mass. 2007); <i>In re Application</i>, 2007 WL 3036849 (S.D. Tex. Oct. 17, 2007). 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).

]]> By: Paul Ohm http://www.concurringopinions.com/archives/2008/09/warrant_require.html/comment-page-1#comment-47323 Paul Ohm Fri, 12 Sep 2008 21:00:40 +0000 http://www.solove.org/archives/2008/09/warrant-requirement-for-historical-cell-phone-location-data.html#comment-47323 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 <a href="http://blog.wired.com/27bstroke6/files/original_cell_site_ruling.PDF" rel="nofollow">the government's brief?</a> 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 <em>historical</em> location tracking by a provider falls within <em>Miller</em> and <em>Smith</em> 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. 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.

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