December 15, 2010 | By Kevin Bankston

EFF Location Privacy Victory at Third Circuit Stands, With Implications Far Beyond Your Cell Phone

In EFF's second major privacy victory in as many days, the Third Circuit Court of Appeals today denied the government's request that it reconsider its September decision regarding government access to cell phone company records that reveal your past locations. That means the court's original opinion — holding that federal magistrates have the discretion to require the government to get a search warrant based on probable cause before obtaining cell phone location records — is now the settled law of the Third Circuit, assuming the government doesn't seek review by the Supreme Court. Importantly, this victory won't just provide greater protection for the privacy of your cell phone records but for all other communications records that the government currently obtains without warrants.

As we summarized when we filed our latest brief opposing the government's petition to the Third Circuit for a rehearing, this appellate case — awkwardly titled In the Matter of the Application of the USA for an Order Directing a Provider of Electronic Communication Service to Disclose Records to the Government — was sparked when the government appealed a lower court judge's denial of a government request for a court order to obtain cell phone location records without probable cause. In September, we won a great victory when the the three-judge panel reviewing the case agreed with EFF's arguments and held that federal law gives magistrates the discretion to require warrants for such data. The panel did not reach the question of whether the Fourth Amendment requires warrants in such cases — we think it does — but instead ordered the case back to the magistrate for her to develop a fuller factual record supporting the use of her discretion. However, the government threw a wrench in that plan earlier this month, asking all of the judges in the Circuit — in legal terms, the entire court sitting "en banc" — to review and overturn the panel ruling. And today, the government got its answer from the Third Circuit: no. The decision stands.

This victory is particularly gratifying because the Third Circuit's decision has implications far beyond cell phone location privacy. The main holding of the case was a general ruling about the federal Stored Communications Act ("SCA"), the portion of the Electronic Communications Privacy Act of 1986 that regulates communications providers disclosure of communications content and records. That statute is regularly used by the government to secretly obtain a broad range of content and records, not just cell phone location records, based not a probable cause warrant but on a much easier to obtain court order that doesn't require probable cause (often called a "D Order" since they are authorized in subsection (d) of section 2703 of the SCA). For example, the government routinely obtains email content using D orders instead of warrants (you may remember we joined with Yahoo! to beat back such a request just this summer).

The key holding in this case affects the basic operation of the SCA for D Orders. What the Third Circuit held was that, when the government applies for a D Order, the judge has the discretion to deny that application and instead require a warrant in order to avoid potential Fourth Amendment problems. This is an incredibly powerful pro-privacy ruling, especially compared to the government's position that courts must grant D orders when the government meets the minimal, non-probable cause factual showing that the statute requires. The Third Circuit has clarified that judges can deny D Order applications — for cell phone records, for emails, or anything else — so long as they have reason to believe that the order might violate the Fourth Amendment.

Although this decision is only binding in the Third Circuit, we expect it will newly embolden magistrates across the country to deny government applications that raise serious Fourth Amendment questions. And it certainly will assist EFF and other friends of the court when we fight against such government applications — we no longer have to convince magistrates that the government's requested order would violate the Fourth Amendment, but only that it might. Meanwhile, the Third Circuit's decision also strengthened those Fourth Amendment arguments, by being the first federal appellate decision in more than 30 years to hold that you can have a reasonable expectation of privacy in records that a company keeps about you, another key ruling that has implications far beyond cell phone location privacy.

All in all, it's been a great week for electronic privacy and the Fourth Amendment, so all we can wonder now is: what's next? Whatever the latest developments, you can be sure to hear about them here on the Deeplinks blog. In the meantime, if you're pleased by the work we're doing to preserve your digital privacy, please consider joining EFF. It's only because of the support of people like you that we're able to fight (and sometimes even win!) these critical privacy battles.


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