[IP] Judge says no to law enforcement cell-phone tracking request
Begin forwarded message:
From: Gregory Hicks <ghicks@xxxxxxxxxxx>
Date: September 8, 2005 9:56:59 PM EDT
To: dave@xxxxxxxxxx
Cc: ip@xxxxxxxxxxxxxx, ghicks@xxxxxxxxxxx
Subject: Judge says no to law enforcement cell-phone tracking request
Reply-To: Gregory Hicks <ghicks@xxxxxxxxxxx>
http://rcrnews.com/news.cms?newsId=24009
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By Heather Forsgren Weaver
Sep 6, 2005
WASHINGTON A federal judge in New York has ruled that law enforcement
may not track someone without probable cause, according to News.com by
CNET.
Burton Ryan, an assistant U.S. attorney, had tried to obtain a "pen
register" tap that would track constantly a target whenever his cell
phone was in use.
U.S. Magistrate Judge James Orenstein said no. To require that type of
information, Ryan must apply for a wiretap, which requires probable
cause.
"I don't know anything about the specific case, but it is true that
location information only attaches to a court order obtained with
probable cause," said Les Szwajkowski, a former FBI agent now with
Raytheon Corp "This is exactly the role magistrates are supposed to
play. They are not rubber stamps."
The rules implementing the Communications Assistance for Law
Enforcement Act said that law enforcement was entitled to pen register
information from a cell-phone conversation at the beginning and end of
the call.
This information would make it similar to a pen register in the wired
world, which gives the date, time and number called. Because the
location is fixed in the wired world, the location is known.
According to CNET, Orenstein said that more definitive rules need to be
established.
"My research on this question has failed to reveal any federal case law
directly on point. Moreover, it is my understanding based on anecdotal
information that magistrate judges in other jurisdictions are being
confronted with the same issue but have not yet achieved consensus on
how to resolve it.
If the government intends to continue seeking authority to obtain
cell-site location information in aid of its criminal investigations, I
urge it to seek appropriate review of this order so that magistrate
judges will have more authoritative guidance in determining whether
controlling law permits such relief on the basis of the relaxed
standards set forth (under federal law), or instead requires adherence
to the more exacting standard of probable cause," wrote Orenstein.
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