by Mike Masnick

Filed Under:
4th amendment, cell tower data, privacy, probable cause


Judge Rejects Gov't Request For Cell Tower Data, Noting Recent 4th Amendment Rulings

from the probable-cause dept

We recently wrote about a somewhat surprising ruling by the appeals court in the DC circuit saying that long-term use of a GPS to track someone without a warrant violated the 4th Amendment. What was surprising about this is that, while state courts had ruled similarly, the federal courts had almost universally ruled that such tracking was legal. While that case will almost certainly be appealed and seems to have a decent likelihood of ending up before the Supreme Court, it's apparently already impacting some rulings elsewhere. Chris Soghoian notes that a federal magistrate judge recently rejected the governments' request for historical cell site data from Sprint, because the government failed to show probable cause (as required under the 4th Amendment):
What's notable is that the judge admits to having approved similar requests in the past, but refuses to do so this time, as a result of that recent ruling, and noting that the reasoning highlighted that technology is changing the way many view things concerning privacy and surveillance:
The decision in Maynard is just one of several rulings in recent years reflecting a growing recognition, at least in some courts, that technology has progressed to the point where a person who wishes to partake in the social, cultural, and political affairs of our society has no realistic choice but to expose to others, if not to the public as a whole, a broad range of conduct and communications that would previously have been deemed unquestionably private....

As a result of such decisions, I believe that magistrate judges presented with ex parte requests for authority to deploy various forms of warrantless location-tracking must carefully re- examine the constitutionality of such investigative techniques, and that it is no longer enough to dismiss the need for such analysis by relying on cases such as Knotts or, as discussed below, Smith v. Maryland.... For the reasons discussed below, I now conclude that the Fourth Amendment prohibits as an unreasonable search and seizure the order the government now seeks in the absence of a showing of "probable cause, supported by Oath or affirmation[.]"
Nice to see some judges recognizing this, though it remains to be seen how many others will agree... and how the Supreme Court reacts to all of this.

Reader Comments (rss)

(Flattened / Threaded)

  1. icon
    Christopher (profile), Aug 31st, 2010 @ 8:14pm

    It's about time that we had a judge that realized that these things are very iffy under the Fourth Amendment of the Constitution of the United States.

    The fact is that BY THE LETTER OF THE LAW and by things such as stalking laws, cops following someone without a warrant is? Illegal and a CRIME in most places in the United States.

    To give the cops 'carte blanche' like this is also to diminish the protections in the Constitution, which NO COURT OR LAWMAKING BODY (except federal Congress by an Amendment to the Constitution) are allowed to do.

    reply to this | link to this | view in thread ]

  2. identicon
    Anonymous Coward, Aug 31st, 2010 @ 10:12pm

    You mean a judge actually rejected a requested warrant? Are you serious? This must be like the first time in a real long time. I guess there is a first time for everything then. Then again, it might get appealed so perhaps I shouldn't speak too soon.

    reply to this | link to this | view in thread ]

  3. icon
    average_joe (profile), Sep 1st, 2010 @ 6:18am

    Prof. Orin Kerr has a nice analysis of this here: ourth-amendment-warrant-requirement/

    I don't agree with all of Kerr's conclusions, but it's a great read if you're into Fourth Amendment jurisprudence.

    reply to this | link to this | view in thread ]

  4. identicon
    Anonymous Coward, Sep 1st, 2010 @ 8:09am


    "It's about time that we had a judge that realized that these things are very iffy under the Fourth Amendment of the Constitution of the United States."

    I know, this could mark the beginning of a new era. An era where judges don't automatically grant warrants upon request but one where they actually think about it first. Then again, I'm probably being short sighted here.

    reply to this | link to this | view in thread ]

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