IF AT FIRST YOU DON’T SUCCEED, SPY, SPY AGAIN

Like Ross’ friend Jesus, the Department of Justice was denied three times by the federal courts when it sought to use cell phone networks to trace suspects’ movements without first going to the trouble of making a showing of probable cause. Earlier this week, however, the DoJ lucked out in the federal court for the Southern District of New York.

Without wading too deep into some exceedingly hairy legal territory, here’s the basic gist of the decision on the basis of a quick skim: The Fourth Amendment restrictions that would apply if the government had planted a tracking device don’t apply because (1) unlike in other requests, they’re not asking for enough data from cell towers to triangulate a precise physical location, and (2) they’re only seeking data from the towers when the user is actually on a call, so that the user is held to have voluntarily disclosed the cell tower information to a third party (the phone company). Now, statutes authorizing “pen registers” and “trap and trace” devices permit the government to obtain information about a communication by meeting a much lower evidentiary standard that would be required to get the contents of the conversation. But those statutes explicitly say that information about the user’s location can’t be gathered via those statues alone. So the government wants to combine the pen register authorization with other statues allowing the government to gather information about information service subscribers, subject to a slightly higher oversight standard—still short of probable cause.

The government has thus far refused to appeal any of these cases, so for the time being, it looks like we’ll be left with a confusing patchwork of rules about what kind of tracking then government can do with what level of judicial oversight. If the details interest you, check out the Electronic Frontier Foundation’s archive of legal documents from the relevant cases.

—posted by Julian

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