Judges Urge Standard Cellphone-Tracking Policy

"It is time for Congress to fix the problem," said Al Gidari, a partner with Perkins Coie in Seattle who represents wireless carriers. "It is time to clarify the standard as well as who can get the information. Civil litigants? With or without notice to the subscriber? In emergencies? There are lots of questions and certainly a need for answers."

The public is largely unaware of the scope of the practice or the simmering debate, in part because there is no disclosure requirement - either to the target of the order or to Congress. Moreover, such orders generally remained sealed.

In the Southern District of Texas, for instance, a review of 4,234 electronic surveillance orders issued in the Houston division between 1995 and 2007, which include cellphone tracking orders but not wiretap orders, found that 92 percent remain sealed, according to Magistrate Judge Stephen W. Smith.

The lack of disclosure, Smith wrote in a May 30 opinion, means that "the individual targets may never learn that they had been subjected to such surveillance, and this lack of information will inevitably stifle public debate about the proper scope and extent of this important law enforcement tool."

George Washington University law professor Orin Kerr, a former U.S. prosecutor, said Congress could require that a customer be notified when his location data are sought once a criminal case is closed and no charges brought.

In June 2008, magistrate judges in the Central District of California finally came to a consensus that probable cause was required to issue orders for real-time phone location.

"In our district, we took the standard DOJ position that we should be able to obtain real-time cell site and GPS information without showing probable cause," a federal prosecutor in Los Angeles said. "Ultimately our magistrate bench just said, 'No.' So now we give them probable cause."