Intellectual Property Law

Obama Administration: Constitution Does Not Protect Cell-Site Records

By Ryan Singel, Kevin Poulsen, Sarah Lai Stirland, Kim Zetter, and David Kravets

The Obama administration says the Fourth Amendment prohibition against unreasonable searches and seizures does not apply to cell-site information mobile phone carriers retain on their customers.

The position is being staked out in a little-noticed surveillance case pending before the 3rd U.S. Circuit Court of Appeals in Philadelphia. The case has wide-ranging implications for Americans, as most citizens have or will carry a mobile phone in their lifespan.

At issue is whether the government can require federal judges to order mobile phone companies to release historical cell-tower information of a phone number without probable cause ? the standard required for a search warrant. While judges have varied on the issue, the resulting evidence can be used in a criminal prosecution.

Mobile phone providers keep such information for up to 18 months. Historical cell-site location information includes the tower connected at the beginning of a call and at the end of the call.

"Because wireless carriers regularly generate and retain the records at issue, and because these records provide only a very general indication of a user's whereabouts at certain times in the past, the requested cell-site records do not implicate a Fourth Amendment privacy interest," the Obama administration wrote (.pdf) Feb. 13 to the federal appeals court.

The court filing underscores that the Obama administration is continuing to maintain the Bush administration's hard-line position when it comes to supporting warrantless surveillance.

The latest surveillance case is believed to be the only one of its kind to reach the federal appellate level, said Jennifer Granick, the civil liberties director for the Electronic Frontier Foundation.

"Almost everybody in the United States carries or will carry a cell phone," she said. "This tracking ability is a means where the government can find out the location of pretty much everybody without much effort or expense."

The EFF and the American Civil Liberties Union on Tuesday urged (.pdf) the federal appeals court to side against the Obama administration.

The case on appeal concerns the government's ongoing investigation into "large-scale narcotics trafficking and various related crimes." A Philadelphia federal judge denied requiring the disclosure of the cell-site information until the government provided an application for a search warrant. The government refused.

The appeals court did not indicate when it would rule.

Photo: Jeff Kubina's photostream

See Also:

• Report: U.S. Surveillance Society Running Rampant
• $2 Million Texas Surveillance System Nets 500 Lbs of Pot
• Lawmakers Proposing Millions for Elementary School Surveillance ...
• Attorney General Pulls Immunity Trigger, Denies 'Dragnet ...

Full post as published by Threat Level on March 17, 2009 (boomark / email).