 | Can the government track your cell phone's location without probable cause? |
Federal Magistrate James Orenstein in New York comprehensively smacked down every argument made by the government in an extensive, fifty-seven page opinion issued this week. Judge Orenstein decided, as EFF has urged, that tracking cell phone users in real time required a showing of probable cause that a crime was being committed. Judge Orenstein's opinion was decisive, and referred to government arguments variously as "unsupported," "misleading," "contrived," and a "Hail Mary."
Earlier this month, a magistrate judge in Texas, following the lead of Orenstein's original decision, published his own decision denying a government application for a cell phone tracking order. That ruling, along with Judge Orenstein's two decisions, 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.
"The Justice Department's abuse of the law here is probably just the tip of the iceberg," said EFF Staff Attorney Kurt Opsahl. "The routine transformation of your mobile phone into a tracking device, without any legal authority, raises an obvious and very troubling question: what other new surveillance powers has the government been creating out of whole cloth and how long have they been getting away with it?"
The government is expected to appeal both decisions and EFF intends to participate as a friend of the court in each case.
You can read the full text of Judge Orenstein's new opinion, and the similar Texas opinion, at http://www.eff.org/legal/cases/USA_v_PenRegister.
Photo: ESA