Location, Location, Location: Three Recent Court Controversies on Cell Phone & GPS Tracking (and a Congressional Hearing, Too), November 30th, 2010
Legal Analysis by Kevin BankstonWelcome to the 21st century, where we all carry tracking devices in our pockets and where one morning you might find an FBI-installed GPS tracking device on your car. In this age of location-based-everything, the legal question of whether or not the government has to get a search warrant based on probable cause before secretly tracking you becomes all the more important. Three recent court developments from across the country — and a Congressional hearing — put a fine point on this key privacy controversy for the mobile era.
In Philadelphia, at the Third Circuit Court of Appeals…
EFF yesterday filed the latest brief in its ongoingbattle in the Third Circuit to protect the privacy of cell phone company records that reveal your past locations. There, the government appealed a lower court judge’s denial of a government request for a court order to obtain cell phone location records without probable cause. In September, we won a great victory when the the three-judge panel reviewing the case agreed with EFF’s arguments and held that federal law gives magistrates the discretion to require warrants for such data. The panel did not reach the question of whether the Fourth Amendment requires warrants in such cases — we think it does — but instead ordered the case back to the magistrate for her to develop a fuller factual record supporting the use of her discretion. However, the government threw a wrench in that plan, filing earlier this month a petition asking all of the judges in the Circuit — in legal terms, the entire court sitting “en banc” — to review and overturn the panel ruling. Yesterday’s brief was our response to that government petition, arguing that the panel got the law right and that the case does not warrant reconsideration.