Warrantless cell phone tracking on the horizon?

There is no doubt about the fact that real time or historical tracking of criminals’ movement via their cell phones can come really handy to law enforcement officers. It is certain that most of them – if not all – would like to avail themselves of this opportunity in order to gain helpful information to aid them in their investigations.

According to Newsweek, some of them have. Federal magistrates around the country were asked to sign off on warrants that would allow law enforcement agencies to use cellphones as tracking devices. But, some magistrates in New York, Pennsylvania, and Texas haven’t been that forthcoming and refused to sign such requests, not being convinced about their legality.

Al Gidari, a lawyer representing several wireless providers, says that his customers receive thousands of GPS information and cell-tower data requests per month. Sprint Nextel even has a web portal through which law enforcement agencies can access such data without a court order if there is an “emergency” situation. But, who decides if a situation is an emergency? If it’s the law enforcement officer, there is a high probability that he/she will be tempted to label situations as “emergencies” even if they are not.

So far, there have been a couple of cases in which officers have demanded such information from the telecommunication companies on false pretenses: an Alabama sheriff requested that the company ping his daughter’s cellphone on the pretext that she has been kidnapped, when in fact she only stayed out too late. Some Michigan cops asked information about all the cellphones in an area where a legal protest was to be held. Reason given? They were concerned about a riot taking place.

Some years ago, a Pittsburgh magistrate by the name of Lisa Pupo Lenihan, refused to sign a court order for historical cell phone tracking records in a drug-smuggling case, because she was of the opinion that the data collected in such a way could be misused. Her colleagues agreed with her and co-signed the refusal to let the prosecutors know they will be faced with the same decision if they tried to apply for the court order with any of them.

Yahoo! News reports that the issue was hotly debated this month, when a Justice Department lawyer asked for this ruling to be over overthrown by a three-judge panel at the Court of Appeals.

Privacy groups opposing this motion pointed out that this kind of data can reveal things about the cell phone user’s life that can be used against him and are not connected to the case – things like what political rally he was at or an extramarital affair.

“You know there are governments in the world that would like to know where some of their people are or have been,” said Dolores Sloviter, one of the panel, to the lawyer. “Can the government assure us that it will never try to find out these things?” After some attempts to deflect the question, he was forced to admit that such assurance is impossible.

Still, the final decision about whether or not the government should be allowed to obtain “non-content” data without a warrant is yet to be taken. The Electronics Communications Privacy Act – the legislation that the lawyer claims should be applied to such cases – dates back to 1986 and is scheduled to be reviewed this year.