J. D. Heyes
Oct 15, 2012
It seems like these days, abuses of our Constitution are occurring more frequently by those who have been entrusted to protect and uphold it.
U.S. attorney Nathan Judish argued recently before the 5th Circuit Court in New Orleans that the government need not obtain a probable cause search warrant for cellphone user data because, he says, customers have “no reasonable expectation of privacy.” (No word on whether he – or the Justice Department as a whole – takes that same stance for customers of traditional “landline” telephones.)
Judish – senior counsel for the Justice Department’s Computer Crime and Intellectual Property Section – “argued that because cellphone companies store usage information at their own discretion, they act as witnesses in a criminal investigation where any relevant information is admissible without a warrant,” Courthouse News Service reported.
That rumble you just heard was our Founding Fathers collectively rolling over in their graves at such a tortured explanation of why the Constitution’s Fourth Amendment’s privacy guarantees suddenly don’t apply to federal agents.
The case stems from a government attempt to obtain judicial orders granting the government authority to obtain 60 days’ worth of location data from two cellphone companies as part of – get this – a routine investigation. So there’s not even extenuating circumstances or other special need for the government to want to trash the Constitution; the Leviathan simply wants so the Leviathan thinks it should get.
Cellphone technology already provides a wealth of data
Fortunately – so far – the Justice Department has not been able to convince a federal court the Fourth Amendment no longer counts. U.S. Magistrate Judge Stephen Smith rejected the government’s request a few years ago, saying in 2010 that Justice lawyers must apply for a search warrant which is supported by probable cause; a federal judge has since agreed.
Undeterred; however, the Justice Department is appealing the Constitution-friendly ruling to the 5th Circuit. Judge Thomas Reavley, one member of a three-judge appeals panel, hinted that perhaps Smith required the search warrant because cellphone technology is continually advancing, and that future records could reveal a lot more than they do today.
Judish countered that the federal appeals court shouldn’t address possible future technology, but only address technology that is currently available.
However, Susan Freiwald, a professor at the University of San Francisco’s School of Law, says cellphone technology is already adept at “massive surveillance,” adding that the government’s request for cellphone records for a two-month period is “too long and too intrusive,” according to the legal newswire service.
She discounted the government’s claim that even if cellphone users know their phones are “tracking devices,” they should reasonably expect not to be tracked by them.
“The rule is not that mere access to information is subject to no expectation of privacy,” Freiwald said, noting that the government, in this case, wants to “be provided on a continuous basis all information related to a call.”
Arguing for privacy
In earlier cases, she said the government only sought cellphone registration and location data, as well as data pertaining to all cellphone tower customers in a certain region, before and after a specified time.
“Without a warrant, agents are engaging in a massive surveillance of people,” Freiwald said, adding that the government is trying to claim a warrant isn’t required for such information.
Hanni Fakhoury, a staff attorney for the Electronic Frontier Foundation, an electronic privacy advocate group in San Francisco, said that technology today is advanced enough that cellphone records reveal not simply where people have been, but also can provide patterns about where they regularly go – a gay bar, a mosque or other places, for instance.
There was no indication how the three-judge panel might rule, Courthouse News reported. Let’s hope the panel follows the lead of the two previous federal judges and does the right thing by the people.
This article was posted: Monday, October 15, 2012 at 2:52 am