DOJ's Decision Denies Courts Guidance on When to Authorize Tracking

San Francisco - The US Department of Justice (DOJ) has told the Electronic Frontier Foundation (EFF) that it will not appeal a New York decision that forcefully rejected its request to track a cell phone user without first showing probable cause of a crime. It also appears that DOJ will not appeal a similar opinion recently issued in Texas.

Last week in the Eastern District of New York, Federal Magistrate Judge James Orenstein, in a scathing opinion, rejected DOJ's request to track a cell phone without a warrant, agreeing with a brief EFF filed in the case. Describing the government's justifications for the tracking request as "unsupported," "misleading," and "contrived," Orenstein ruled that tracking cell phone users in real time required a showing of probable cause that a crime is being committed. Earlier this month, another federal magistrate judge in the Southern District of Texas published his own opinion denying another government application for a cell phone tracking order. DOJ has failed to file timely objections with the District Court in that case, too. Although DOJ may still decide to appeal that case to the Fifth Circuit, its choice not to appeal the nearly identical opinion in the New York case makes that seem unlikely.

"The government's decision not to appeal either of these cases is disappointing," explained EFF staff attorney Kevin Bankston. "The magistrate judge in New York explicitly encouraged the government to appeal the decision so that he and his fellow judges around the country could get some guidance from the higher courts. The very important question of when the government can track your cell phone remains an open question that should be argued openly in the appeals court, not litigated piece-meal in lower-court proceedings where the government is secretly presenting cell phone tracking requests."

An October 28 story in the Washington Post reported that, when questioned about the court decisions, "Justice Department officials countered that courts around the country have granted many such orders in the past without requiring probable cause."

"The Justice Department has been arguing for warrantless cell phone tracking in secret proceedings with magistrate judges across the country, probably for years," said Bankston. "My biggest fear is that DOJ intends to continue seeking these illegal surveillance orders in secret, while avoiding scrutiny from higher courts."

You can read the full text of Judge Orenstein's opinion, and the similar Texas opinion, at


Kevin Bankston
Staff Attorney
Electronic Frontier Foundation