Friday, December 13, 2013
By Juan A. Lozano / The Associated Press
HOUSTON — Authorities only need a court order and not a more stringent search warrant to obtain cellphone records that can be used to track a person's movements, a federal appeals court ruled on Tuesday.
The 5th U.S. Circuit Court of Appeals overturned an order by a Houston federal judge who had said cellphone data is constitutionally protected from intrusion and can only be acquired with a search warrant.
In 2011, U.S. District Judge Lynn Hughes had upheld a magistrate judge's 2010 ruling that had denied a request by federal authorities in three separate criminal investigations to compel cellphone companies to provide – without a search warrant – 60 days of records for several phones.
In overturning Hughes' order, the appeals court in New Orleans said such data is a business record that belongs to the cellphone provider. It also said its collection by authorities does not have to meet a probable cause standard as outlined under the Fourth Amendment, which protects against unlawful search and seizure and requires a search warrant.
"We understand the cellphone users may reasonably want their location information to remain private. ... But the recourse for these desires is in the market or the political process: in demanding that service providers do away with such records ... or in lobbying elected representatives to enact statutory protections. The Fourth Amendment, safeguarded by the courts, protects only reasonable expectations of privacy," the three-judge panel wrote in its 2-1 decision.
The cellphone data authorities had requested was being sought under the Stored Communications Act, part of the Electronics Communications Privacy Act.
The appeals court said under the Stored Communications Act, authorities have the option of obtaining a court order – which has a lower legal standard than a search warrant. With a court order, authorities only have to demonstrate there are "reasonable grounds" to believe the information would be relevant to an investigation.
Unlike the National Security Agency's recently publicized program that seized phone records in bulk through court orders approved by a secret court, the cellphone records sought in this case related to specific investigations and their seizure had to be approved through regular and established legal procedures.
Angela Dodge, a spokeswoman for the U.S. Attorney's Office in Houston, which had fought Hughes' order, said her office was pleased by Tuesday's ruling.
"We are gratified that the court found we acted in a manner consistent with the law at the time. We felt we interpreted the law correctly and welcome the agreement of the 5th Circuit," Dodge said in an emailed statement.
In court documents, prosecutors had argued that since such cellphone data are actually business records owned by the providers, customers have no reasonable expectation of privacy.
Officials with the American Civil Liberties Union, which had filed legal briefs in the case asking that the rulings by Hughes and the magistrate judge be upheld, said they were disappointed with the 5th Circuit's decision.
"This ruling fails to recognize that Americans do in fact have a reasonable expectation of privacy in their cellphone location information. Where you go can reveal a great deal about your life, and people don't think that carrying a cellphone around means that someone can get a detailed record of their movement for days or even months on end," said Catherine Crump, a staff attorney with the ACLU. "The government should not be able to access this personal, sensitive information without getting a warrant based on probable cause. Unfortunately, the 5th Circuit's decision allows exactly that."
Federal and state courts have been divided over the issue.
Earlier this month, the New Jersey Supreme Court ruled all law enforcement officers in that state must get a search warrant based on probable cause if they want access to cellphone locating data.
Earlier this year, both Maine and Montana passed legislation requiring authorities to obtain a search warrant to get location information from a person's cellphone.
Crump said she believes this issue will probably have to be decided by the U.S. Supreme Court.
"This question is one of crucial significance to every American that carries a cellphone," she said.