October 20, 2005 | By Kevin Bankston

One More and it's a Movement: Another Federal Judge Says no to Cell-phone Tracking Without Probable Cause

Last month, we told you about the first published court decision considering when the government can track your cell phone's location. In that case, federal magistrate judge James Orenstein in New York denied the Justice Department's request to track someone's cell phone location without probable cause. EFF filed a brief in that case, urging the Court to stand by its decision despite the government's request that it reconsider.

It looks now like judicial skepticism of the DOJ's authority to track cell phones is catching. Last week, a second magistrate judge—this time in Texas—issued another decision similarly denying a Justice Department request to tap a cell phone's location.

(Read more after the jump.)

Using much of the same reasoning as in EFF?s New York brief, the Texas Court found that it could only authorize the surveillance based on a search warrant supported by probable cause, and dismissed the DOJ's argument that a combination of existing surveillance statutes authorizes cell-phone tracking under a lower legal standard. "Surely," the Court found, "if these various statutory provisions were intended to give birth to a new breed of electronic surveillance, one would expect Congress to have openly acknowledged paternity somewhere along the way?. While Congressional enactments are sometimes difficult to decipher, employing such a three-rail bank shot to create a new category of electronic surveillance is almost perverse.?

The weakness of the government's argument makes it all the more remarkable that, as the New York decision first hinted and this one confirms, the government has routinely succeeded in convincing magistrate judges to follow its ?perverse? logic and allow cell phone tracking without probable cause. Indeed, seeking such court orders is the government's "standard practice," according to the Texas decision, and magistrate judges are faced with such cases "on a daily basis."

The DOJ has been getting away with this for years, apparently?but now, with two judges having publicly rejected the government's argument, hopefully even more courts will start viewing the DOJ's "standard practice" with suspicion, and add more support to what should be an obvious proposition: the government can't track your cell phone's location without a search warrant.

As Judge Smith, the magistrate in Texas, described at the end of his decision: "Judge Orenstein's opinion was the first word on this topic; this opinion will undoubtedly not be the last. It is written in the full expectation and hope that the government will seek appropriate review by higher courts so that authoritative guidance will be given the magistrate judges who are called upon to rule on these applications on a daily basis."

We share Judge Smith's hope?and guarantee that when a higher court considers the issue of cell phone tracking, EFF will be there to defend your privacy rights.

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