[Infowarrior] - WH: Constitution Does Not Protect Cell-Site Records

[Richard Forno]

Obama Administration: Constitution Does Not Protect Cell-Site Records
By David Kravets EmailMarch 17, 2009 | 2:21:35 PM

http://blog.wired.com/27bstroke6/2009/03/obama-administr.html

The Obama administration says the Fourth Amendment prohibition against  
unreasonable searches and seizures does not apply to cell-site  
information mobile phone carriers retain on their customers.

The position is being staked out in a little-noticed surveillance case  
pending before the 3rd U.S. Circuit Court of Appeals in Philadelphia.  
The case has wide-ranging implications for Americans, as most citizens  
have or will carry a mobile phone in their lifespan.

At issue is whether the government can require federal judges to order  
mobile phone companies to release historical cell-tower information of  
a phone number without probable cause — the standard required for a  
search warrant. While judges have varied on the issue, the resulting  
evidence can be used in a criminal prosecution.

Mobile phone providers keep such information for up to 18 months.  
Historical cell-site location information includes the tower connected  
at the beginning of a call and at the end of the call.

"Because wireless carriers regularly generate and retain the records  
at issue, and because these records provide only a very general  
indication of a user's whereabouts at certain times in the past, the  
requested cell-site records do not implicate a Fourth Amendment  
privacy interest," the Obama administration wrote (.pdf) Feb. 13 to  
the federal appeals court.

The court filing underscores that the Obama administration is  
continuing to maintain the Bush administration's hard-line position  
when it comes to supporting warrantless surveillance.

The latest surveillance case is believed to be the only one of its  
kind to reach the federal appellate level, said Jennifer Granick, the  
civil liberties director for the Electronic Frontier Foundation.

"Almost everybody in the United States carries or will carry a cell  
phone," she said. "This tracking ability is a means where the  
government can find out the location of pretty much everybody without  
much effort or expense."

The EFF and the American Civil Liberties Union on Tuesday urged (.pdf)  
the federal appeals court to side against the Obama administration.

The case on appeal concerns the government's ongoing investigation  
into "large-scale narcotics trafficking and various related crimes." A  
Philadelphia federal judge denied requiring the disclosure of the cell- 
site information until the government provided an application for a  
search warrant. The government refused.

The appeals court did not indicate when it would rule.