By Ross Todd, From The Recorder
SAN FRANCISCO — A federal judge in San Jose is prepared to consider whether the Fourth Amendment applies to the cell-tower data that prosecutors and agents routinely obtain from telecommunications companies and use to approximate the location of suspects.
Federal prosecutors in the Northern District of California have asked U.S. District Judge Lucy Koh to overturn a magistrate judge’s decision from April that found they need a search warrant to access stored cell-tower records. The issue has become a point of friction between prosecutors and the federal bench but is rarely aired publicly.
Linda Lye, a senior staff attorney at the American Civil Liberties Union of Northern California, said the appeal creates a rare opportunity for opponents of the government’s digital surveillance techniques to be heard. Most decisions about what the government can and cannot access without a warrant, Lye said, are made as a result of ex parte proceedings to avoid tipping off suspects. “These are difficult, novel statutory and constitutional questions and the government is effectively able to make surveillance law on its own and in secret,” Lye said.
Cellular companies keep records of the cell site towers that transmit calls customers receive and make, as well as the 120-degree sector of the tower from which the call came in or went out. Such records offer investigators a powerful tool to establish the location of suspects, particularly in dense urban areas served by many cell towers.
Judge Koh won’t be the first Article III judge in the Northern District to weigh the issue of whether prosecutors should be required to show probable cause before obtaining cell-tower records. In March, U.S. District Judge Susan Illston found that prosecutors should have gotten a warrant to access past cell records in United States v. Cooper, 13-693, a criminal drug prosecution. Illston, however, allowed prosecutors in the case to continue to use the information finding they had acted in good faith since there was no Ninth Circuit law directing them that they needed a warrant. (The government dropped the case prior to trial, so Illston’s decision won’t be appealed.)
Illston’s decision put prosecutors on notice and got the attention of the district’s magistrate judges, who routinely have to decide whether to sign off on government requests for cell site records in ongoing investigations. In April, U.S. Magistrate Judge Howard Lloyd became the first magistrate in the district to force the government to show probable cause before signing off on such an order in the wake of Illston’s decision.
“This court finds Judge Illston’s analysis very persuasive, and concludes, until binding authority says otherwise, that in order to get cell site information, prospective or historical, the government must obtain a search warrant,” Lloyd wrote in a four-page decision.
In late April, prosecutors appealed the portion of Lloyd’s decision dealing with historical records arguing that “a person has no right to privacy in historical cell site information.” Historical cell site records, they wrote, are not a customer’s private papers, but the business records of service providers. The government doesn’t determine what companies should retain or how long they should hold onto it, they claim. In a footnote, prosecutors argued that a person also has no privacy rights in regards to forward-looking cell site information, but declined to appeal that portion of Lloyd’s decision.
Brian Owsley, a professor at Indiana Tech Law School who previously served as a magistrate judge in the Southern District of Texas, said prosecutors are likely more confident that current law favors their position with regards to past records. When cell site data is used in real-time, cellphones appear to be more like tracking devices that the U.S. Supreme Court has found require a search warrant, he said.
“There’s a fair amount of consensus” that the way past records are being obtained—via a court order under Section 2703 (d) of the Stored Communications Act rather than via a search warrant—is the way it should be done, Owsley said.
A U.S. Court of Appeals for the Eleventh Circuit panel decision on which Judge Illston had relied was recently reversed in an en banc decision. Both the Fifth and Third circuits also have decided the issue largely in the government’s favor, finding that historical records can be obtained via the lower burden of proof required under the Stored Communications Act.
“This is still a pretty fluid landscape notwithstanding what’s gone on in the circuits,” Owsley said. “I like the fact that the court is getting guidance of the Federal Public Defender. It’s hard to have an adversarial process when there’s only one side presented.”
The Federal Public Defender’s office is likely to have backing from the American Civil Liberties Union and the Electronic Frontier Foundation, which have gotten the government’s consent to appear as amici in the case.
EFF senior staff attorney Hanni Fakhoury said Koh isn’t bound by the circuits that have decided the issue thus far.
If Koh were to rule against the government, Fakhoury said the government could appeal to the Ninth Circuit. He’s less sure whether the Federal Public Defender or privacy advocates would have standing to appeal should Koh side with the government.
A hearing is scheduled for June 24.
IMAGE: U.S. District Judge Lucy Koh, Northern District of California
Jason Doiy / The Recorder
For more on this story go to: http://www.therecorder.com/id=1202728446200/Koh-Takes-Up-Hot-Topic-in-Cellphone-Surveillance#ixzz3cCcLZBO8