One more magistrate judge has refused to allow the government's practice of secretly using cell phones to track people without probable cause--this time in the Southern District of New York (Manhattan). The magistrate judge declined to grant the government's request "without further briefing from the Government concerning the propriety of issuing these orders."
The SDNY judge sought further briefing due to an August decision from a magistrate judge in the Eastern District of New York (Long Island) denying a similar government request. The government provided a letter brief in support, and, upon the court's request, the SDNY Federal Defender's Office responded last week with an amicus brief in opposition.
The US Attorney for the SDNY faces an uphill battle: Two courts (the EDNY and the Southern District of Texas) have considered the government's arguments so far, and both found them completely unpersuasive. Recognizing the importance of this decision, both magistrate judges urged an appeal in order to allow a Circuit Court to rule on this pernicious practice.
Nevertheless, the US Attorney's Offices in those jurisdictions have elected not to appeal the adverse decisions. Curiously, this has not prevented the SDNY US Attorney from moving forward here. Indeed, the government's brief reveals that US Attorney's offices all over the country have "routinely applied for an obtained court orders [compelling] cellular telephone companies to report ... cell site data, for a particular cell phone on a prospective basis."
We can only hope that the government does not intend to continue this practice in whatever districts have not yet ruled against it; the Department of Justice should either stop seeking the tracking orders or have the courage to take it up to an appeals court. But until the DOJ stops, it is great to see one magistrate after another challenging the government and putting a stop to big brother in your pocket.