Judges Urge Standard Cellphone-Tracking Policy

By Ellen Nakashima
Washington Post Staff Writer
Friday, November 14, 2008 12:01 AM

Magistrate judges across the country are renewing calls for Congress to set a consistent legal standard for law enforcement to meet when seeking cellphone tracking information about a wireless provider's customers.

The need was underscored, they say, by a recent federal district court ruling that required federal agents to obtain a warrant, which is based on probable cause, to direct a wireless provider to turn over signal information indicating where a customer was when his phone was turned on.

Other federal courts have ruled that a showing of probable cause is not necessary.

"This whole area should be the subject of some uniform legislation that says let's try and coordinate what's going on here, otherwise it becomes ad hoc. That's not the court's role," said one U.S. magistrate judge, who spoke on condition of anonymity because, he said, expressing an opinion outside a written ruling could be seen to compromise his objectivity.

Cellphone signals offer federal investigators an effective way to surreptitiously track a suspect's location. One day, orders to obtain such data could become as common as search warrants.

But unlike with search warrants, there is no consistent legal standard for issuing them. Decisions depend on the court and even which judge in which district is hearing requests that day.

The inconsistencies are so pronounced that last year, federal judges in the Central District of California created two application forms - one for judges who require a warrant based on probable cause, and one for those who don't, according to documents obtained by the American Civil Liberties Union and the Electronic Frontier Foundation. Those groups sued the government under the Freedom of Information Act for disclosure of records showing how widespread the practice is.

Magistrate judges, who typically issue the orders, have urged the federal government to appeal adverse rulings so a clear standard can be articulated. But an appellate court has yet to hear a case, experts said.

"There is one rule for tracking cellphones in Los Angeles," said Catherine Crump, ACLU staff attorney. "There's another rule in New York. . . . The fact is, tracking cellphones without probable cause anywhere is unconstitutional."

Justice Department spokesman Dean Boyd had no comment on whether legislation is advisable or why the government has not appealed a case. He said in an e-mail that the Justice Department recommends that field prosecutors obtain a court order based on probable cause when seeking data capable of identifying a suspect's "precise location in a private area not accessible to the public."

For less precise data, such as approximating someone's location in relation to the nearest cellphone tower, he said that judges "in the majority of federal districts" require a lower standard: " 'specific and articulable facts' supporting law enforcement's need for the records."

But privacy and industry advocates said consistency across districts is important. There are conflicting judicial opinions on whether real-time information about a customer's proximity to a cell tower should require a warrant or something less, and the same debate has applied to more precise data derived from Global Positioning System-enabled phones, which receive satellite signals.

"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."

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