US Federal Courts Divided Over Cell Phone Surveillance

After successive failures by the US government in New York, Texas and Maryland courts to obtain cell phone tracking without judicial warrant, the government has prevailed. In late December, for the first time the Department of Justice (DOJ) obtained an order from Judge Gabriel Gorenstein, a magistrate in the Southern District of New York, permitting the tracking of cell phone use without the necessity of first showing probable cause of criminal activity. As noted in an earlier issue of e-tips®, (November 9, 2005, Vol 4, No 10, "US Courts Reject Applications For Cell Phone Surveillance: The Cell Phone As Tracking Device"), the concern expressed by other lower level courts was that, unlike the situation with land line calls, the tracking of cell phone conversations could lead to the pinpointing of the exact locations of callers, even when the phone was not in use. However, in the most recent case decided on December 20, 2005 (In re Application of the United States for an Order of Disclosure of Telecommunication etc, No 05 Mag 1763, SDNY), Judge Gorenstein distinguished the earlier cases on the basis that in the fact situation before him the DOJ was seeking only to tap cell phone activity when the subject phone was actually in use and that because only activity from one cell tower was being monitored, this made triangulation (and therefore, locating the geographic source of the call) impossible. Given an element of conflict and uncertainty arising from the several decisions, privacy advocates are hoping that an appellate court may introduce further clarity to the issues. For the full text of the most recent decision, see: http://makeashorterlink.com/?L28812F8C Summary by: The Editor