US Courts Reject Applications for Cell Phone Surveillance: The Cell Phone as Tracking Device

Recently, two US lower courts considered whether the threshold of evidence required to obtain an order allowing cell phone surveillance should be equivalent to or greater than that required for a land line surveillance order. The courts' concern was that cell phones can be used by enforcement agencies as locating devices. An investigator could conceivably use a cell phone surveillance order to gather data to determine the precise location of a cell user – even when the phone is not in use. Traditionally, a much higher threshold of evidence has been required to obtain an order for the placement of a "locating device" than for a telephone surveillance order. In both of these recent US decisions, the courts concluded that the higher threshold of evidence was required for a cell phone surveillance order. To gain judicially approved access to location tracking information, at least some evidence of actual criminal activity must be shown and it must be more than merely "relevant" to an investigation. As the judge in the New York case remarked, "When the government seeks to turn a mobile telephone into a means for contemporaneously tracking the movements of its user, the delicately balanced compromise that Congress has forged between effective law enforcement and individual privacy requires a showing of probable cause". Both judges concluded that Congress needed to clarify the laws regarding cell phone tracking and surveillance. For the full text of the court decisions, visit: http://www.eff.org/legal/cases/USA_v_PenRegister/Cell-Site-Opinion.pdf (US District Court for the Southern District of Texas, Houston Division, October 14, 2005); and http://www.eff.org/legal/cases/USA_v_PenRegister/celltracking_decision.pdf (US District Court for the Eastern District of New York, October 24, 2005) Summary by: Sue Diaz