At the end of August, privacy advocates were concerned because the U.S. Court of Appeals for the Ninth Circuit ruled that police don't need a search warrant to place a tracking device on a vehicle sitting in a driveway that is accessible to the public.
They are concerned not only by the ruling, but by the fact that the Ninth Circuit made it. Typically, what happens in the Ninth Circuit is a harbinger of what will eventually happen in the rest of the country.
Last week a similar ruling came down from a three-judge panel of the U.S. Court of Appeals for the Third Circuit. There's no indication in the written decision that the Ninth Circuit's previous ruling influenced this one, but it's interesting that two rulings of similar import from two different courts would be made within weeks of each other.
CNET News reports that the case began in the U.S. District Court for the Western District of Pennsylvania, where the Bureau of Alcohol, Tobacco, Firearms and Explosives, wanted to obtain "historical (meaning stored, not future) phone location information because a set of suspects 'use their wireless telephones to arrange meetings and transactions in furtherance of their drug-trafficking activities.' "
Moreover, the Bureau wanted to get the information without a search warrant. Investigators wanted an order under 18 U.S.C. section 2703(d), which requires a lesser standard of proof than probable cause.
The magistrate denied the request, but the appellate panel decided the magistrate had erred. From the decision:
Cell site location information from cell phone calls is
obtainable under a 2703(d) order... and...the standard is governed by the text of 2703(d), i.e., "specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation."
The panel did, however, decide that in some instances, judges could require search warrants for cell phone location data. Which instances will require warrants is apparently left to the discretion of the judge.
Also, though the Electronic Frontier Foundation and other privacy groups filed "friend of the court" briefs arguing that a search warrant was required before police could obtain such information because it was protected by the Fourth Amendment, the panel did not specifically address that issue. EFF attorney Kevin Bankston told CNET:
It is still an open question as to whether the Fourth Amendment applies to cell phone records.
Like the Ninth Circuit decision before it, I will be interested to see if and how this ruling is appealed.