December 11, 2013 | By Hanni Fakhoury

As Outrage Over Cell Phone Tracking Grows, EFF Amicus Asks for Warrant Requirement

Alarming information about just how frequently law enforcement officials across the country (not to mention the NSA) are trying to get cell phone data, including your location, seem to be published in the news media every day.  With these privacy concerns in mind, last week we filed an amicus brief in the Connecticut Appellate Court in State v. Smith, urging it to find the state police violated the Fourth Amendment when it obtained cell tower records without a search warrant.

In this case, police were investigating a bank robbery and wanted to get cell phone records to tie the defendant to the crime. Officers obtained an ex parte order from the court that allowed them to obtain six months worth of Smith's cell phone records, including subscriber information and cell tower connection records. Even though the government went to a judge to get authorization to get the records, they didn't get a search warrant. Instead, both federal and Connecticut state law authorize police to obtain cell phone location records with a showing less than the probable cause required to obtain a warrant. The trial court found the records were obtained properly and Smith was convicted and sentenced to 55 years in prison.

On appeal, Smith argues that the Fourth Amendment's prohibition against unreasonable searches and seizures means the police must obtain a search warrant supported by probable cause to get cell site records. Our brief agrees, explaining how cell site records can reveal a person's location with increasing precision, triggering an expectation of privacy and requiring police to obtain a probable cause search warrant in order to access this information. The warrant requirement is a minimal additional burden, since police have to go to a judge anyway to get the records under current law. Our new amicus brief follows on the heels of other briefs we've filed on the topic in state and federal courts across the country, arguing that police must obtain a search warrant to get access to a cell phone company's records about which towers a cell phone connects to.

This is a pervasive problem, with warrantless searches going on across the country. Senator Edward Markey (D-MA) recently published responses he received to a number of questions he sent to seven different cell phone providers about their interactions with law enforcement. The responses detailed how many law enforcement requests they obtained in 2012, what type of judicial or administrative orders they require before they produce records, and how much money they were reimbursed by the government. We hope to have more about these responses soon, but the quick takeaway is that there are lots of government requests being made by law enforcement to the police, including over 9,000 requests for "tower dumps," a 21st century general warrant that asks a cell phone provider to disclose the records of all the phones that connect to a cell phone tower at a particular time.

Senator Markey has indicated he hopes to introduce a bill to require police obtain a search warrant before accessing these records, a legislative fix that has been proposed in Congress before but gone nowhere. But this time, with growing concern over the government's surveillance capabilities and the lead of states like Maine, Montana and New Jersey, who have all adopted a warrant requirement for cell tracking by legislation or court decision, we're hopeful that lawmakers will understand the privacy interests at stake and safeguard our locations with a search warrant.

Thanks to Glenn Falk of the New Haven Legal Assistance Association for serving as our local counsel.


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