The DOJ Wants Access to Your Cell Phone Data…Without a Warrant

The Department of Justice is proposing that cellphone records be made more accessible to government.  DOJ deputy assistant attorney general, Jason Weinstein, claims that warrants “cripple” police and prosecutors, at the onset of an investigation.  Consequently, he believes they should be abolished.

The Supreme Court ruled on behalf of privacy, earlier in the year, contending that a warrant was, indeed, needed in order to attach a GPS satellite-tracking device to a given suspect’s car.  Weinstein, however, points out that federal courts across the country are not unified–they do not all agree that warrants, collected at towers that transmit cellphone signals, are required.  Weinstein is of the opinion that GPS tracking and obtaining data from cell phone towers are two different matters.

The Electronic Frontier Foundation (EFF), on the other hand, has come out in strong disagreement with Weinstein.  EFF has consistently maintained, for years, that law enforcement’s accessing cell phone location data should be accompanied by a search warrant.  Keep in mind, EFF points out, that this data reveals a veritable blueprint of your every move.

The government cites the Stored Communications Act which allows for the disclosure of cell phone location data with a lower threshold than probable cause in terms of the requirement for a search warrant.  But, this year alone, three significant developments have led to a heightened awareness of this topic:

  • First, the Supreme Court issued a landmark decision in United States v. Jones which holds that the warrantless attachment of a GPS device on an automobile violates the Fourth Amendment’s right to be free from unreasonable government searches. In concurring opinions, Justices Alito and Sotomayor both noted that technology had the potential to minimize privacy, particularly in regard to locational privacy, because the information obtained from web enabled smartphones superseded the need for law enforcement to physically install GPS devices in order to track an individual.
  • Then in March, EFF filed an amicus brief along with various other civil liberties organizations, urging the Fifth Circuit Court of Appeals to rule that cell phone location data necessitates a search warrant.
  • In April, the ACLU released the results of a coordinated FOIA request that discovered law enforcement officials throughout the country were regularly obtaining cell phone location tracking information with “differing legal methods and standards,” and were often acquiring this information without a search warrant.

EFF affirms that it is the last point that Weinstein attempts to use in arguing against the need for search warrants.  Weinstein’s comments can be heard here.   Weinstein, according to EFF, does not take privacy into account.  It would appear that he is completely overlooking the Fourth Amendment and the violation that occurs when law enforcement work in collaboration with cell phone providers to gain access to location information.  And, this is done without your knowledge.

Sen. Ron Wyden (D-OR), however, has introduced the GPS Act which seeks to require search warrants in order to access location information.  And, in California, EFF in collaboration with the ACLU of Northern California, has sponsored a bill which would “require law enforcement to get a search warrant anytime it wants location information about another person in California.”

Most recently, Rep. Ed Markey (D-Mass) dispatched a request to the largest wireless carriers, demanding that they disclose information about their relationship with law enforcement.

-Candice Lanier