When is the government allowed to track your cell phone's location? What legal standards must the government meet before a judge can authorize such surveillance? That's the issue in two recent cases where two federal magistrate judges, in an unprecedented move, rejected Department of Justice requests to track cell phones without a search warrant. Setting aside the secrecy that shrouded these requests, the judges sharply rebuked the government. Both courts found the government's arguments completely unpersuasive, variously describing them as "contrived," "unsupported," "misleading," "perverse," and even a "Hail Mary" play. Yet, as the decisions further reveal, the Justice Department has routinely used its bogus legal theory to get secret authorizations for cell phone tracking from a number of courts, probably for many years.
EFF is serving as a friend of the court in one of the cases, in the Eastern District of New York. The judge there initially issued a decision correctly denying the government's surveillance request, but (unfortunately) misread the letter of the law. The government quickly asked the judge to reconsider, pointing out the judge's errors. Enter the EFF, filing a friend-of-the-court brief showing the court the correct reasoning. That judge has since issued a new opinion with new and in-depth analysis consistent with EFF's position, strongly reaffirming its previous holding that the government can't track a cell phone without a search warrant based on probable cause.
The New York court's first denial, which was quickly followed by a similar but better-reasoned denial from another federal judge in Texas, hopefully marks the start of a trend. We need more judges who are brave enough to publish decisions that reveal and condemn the Justice Department's apparently routine misrepresentation of the law in secret court proceedings. That way, we may learn the answers to some key questions: what other unwarranted surveillance powers have the government's lawyers fabricated out of whole cloth and passed off on the courts in secret proceedings? And, as the New York court wondered in its second decision, "how long has this been going on?" EFF plans to find out.