The Electronic Frontier Foundation (EFF) is arguing that a New York
federal court should stand by its decision to require probable cause to believe
a crime has been or is about to be committed before letting the government secretly
track people using their cell phones.
"This is the first case considering when the government can track the
movements of your cell phone, and the answer couldn't be more important,"
said EFF Staff Attorney Kevin Bankston. "Allowing the government to turn
anyone's cell phone into a tracking device without probable cause will enable
a surveillance society that would make Big Brother jealous."
Last month, the court denied a Justice Department request to monitor a cell
phone's location. The ruling revealed that the DOJ has routinely been
securing court orders for real-time cell phone tracking without probable cause
and without any law authorizing the surveillance.
Many cell phone users aren't aware that their phones can be used to track their
location in real-time, even when they aren't using them. EFF filed a friend-of-the-court
brief on Friday to oppose a DOJ motion asking the court to reconsider its pro-privacy
decision. EFF argues that the Fourth Amendment requires a search warrant for
such invasive surveillance, issued under the same strict standards as warrants
that authorize phone and Internet wiretaps.
The government has tried to justify this gross expansion of its authority by
combining two surveillance statutes, neither of which authorize cell phone tracking
on their own. As EFF explains in its brief, there is no support anywhere for
this argument -- not in the statutes' language, nor in legislative history,
case law, or academic commentary. Indeed, it contradicts the government's own
electronic evidence manual. "It's as if the government wants the court
to believe that zero plus zero somehow equals one," said Bankston.
EFF's brief marks the first time the DOJ has had to face lawyers presenting
an opposing argument on this issue. "Secrecy breeds abuse," said EFF
Staff Attorney Kurt Opsahl. "Before this court had the courage to stand
up to the government, the hearings were hidden from the public and the judge
only saw the government's point of view; this led to secret tracking orders
-- without basis in law -- that threaten our fundamental liberties."
The DOJ is expected to appeal to the district court if Magistrate Judge Orenstein
denies its motion to reconsider. The court has not said when it intends to rule.
You can read the full text of the EFF