When we recently reported that the DOJ had chosen not to appeal two court decisions that forcefully rejected its secret requests to track cell phones without probable cause, we expressed our fear that the government would keep trying to secretly convince other judges to grant these illegal orders while avoiding appellate review.
Well, that fear has now been confirmed by a newly-issued third court decision denying a DOJ request for a cell-tracking order, a request that was made after the DOJ chose not to challenge the other two decisions. This time, a federal magistrate judge in Maryland has followed the lead of judges in New York and Texas by refusing to allow the feds to track people's movement via a cell phone unless the government can at least meet the requirements for a search warrant.
Even though there are now three published decisions rejecting the government's arguments and none supporting them, we're aware of at least one other case where the DOJ is still pushing for authorization to track a cell phone without a search warrant. At this point, one has to wonder: how many public trips to the woodshed is it going to take before the DOJ either stops seeking these orders, or is willing to subject its claims to appellate court scrutiny? I think we're going to find out soon enough--at this rate, we'll have a dozen new denials by the spring!