Yesterday, Magistrate Judge Gorenstein of the federal court for the Southern District of New York issued an opinion permitting the government to use cell site data to track a cell phone's physical location, without the government having to obtain a search warrant based on probable cause.
Judge Gorenstein's flawed legal analysis is in sharp contrast to three other federal court opinions strongly rejecting the government's legal arguments, including a decision by Magistrate Judge Orenstein in the Eastern District of New York. While Judge Orenstein referred to the government's legal arguments variously as "unsupported," "misleading," and "contrived," and a Texas court called the convolutions of the government's theory "perverse" and likened its twists and turns to a "three-rail bank shot," Judge Gorenstein bought the government's arguments hook, line and sinker.
Unfortunately, this dangerous new opinion falls into a procedural black hole. Because the DOJ is the only party in these surveillance cases, there's no one left to appeal the decision. Meanwhile, the DOJ has refused to appeal all three times it has lost, despite emphatic requests by the Texas and Eastern District magistrates. The result is that other magistrates across the country won't get clear guidance from the appeals courts on this issue.
That's why EFF will continue to follow this issue closely, and continue to urge other magistrates who face this question to follow the clear and convincing logic of the three courageous judges who stood up for civil liberties and said no to warrantless cell phone tracking.
P.S. The DOJ's practice of monitoring cell phone location without probable cause previously inspired us to ask: "What other new surveillance powers has the government been creating out of whole cloth and how long have they been getting away with it?" Recent revelations about President Bush authorizing warrantless wiretaps of Americans by the National Security Agency have given us the beginnings of an answer. Let's hope that's not just the tip of the surveillance iceberg.
