EFF Argues For Search Warrant Requirement to Get Cell Location Data

A case that seemingly has little connection to the surveillance debate has attracted the attention of privacy and civil rights advocates and could become a key factor in the way that law enforcement agencies have to handle cell phone location data.

With each day bringing new information about the way that intelligence agencies and law enforcement are tracking the activities and movements of U.S. citizens, the issue of when these organizations can legally obtain such data has become a major one. Now, a case that seemingly has little connection to the surveillance debate has attracted the attention of privacy and civil rights advocates and could become a key factor in the way that law enforcement agencies have to handle cell phone location data.

Most convicted bank robbers would have little expectation of finding themselves on the same side of the fence as the lawyers at the EFF, but that’s what’s happened to Kendall O. Smith. Arrested for robbing a bank in Connecticut, Smith was facing many years in prison if convicted. During the course of their investigation, police found themselves needing access to Smith’s cell phone location data in order to connect him to the crime. Officers went to a judge and, as required by state law, got approval to retrieve six months worth of information, including location data.

“Even though the government went to a judge to get authorization to get the records, they didn’t get a search warrant. Instead, both federal and Connecticut state law authorize police to obtain cell phone location records with a showing less than the probable cause required to obtain a warrant. The trial court found the records were obtained properly and Smith was convicted and sentenced to 55 years in prison,” Hanni Fakhoury of the EFF wrote in a blog post explaining the organization’s reasons for filing an amicus brief on behalf of Smith in his appeal of the conviction.

“On appeal, Smith argues that the Fourth Amendment’s prohibition against unreasonable searches and seizures means the police must obtain a search warrant supported by probable cause to get cell site records. Our brief agrees, explaining how cell site records can reveal a person’s location with increasing precision, triggering an expectation of privacy and requiring police to obtain a probable cause search warrant in order to access this information.”

In its brief, the EFF argues that police should be required to obtain a search warrant, which is a small additional burden, because it would help protect users’ privacy. Cell phone location information can be used to track a user’s movements with great precision over a long period of time, giving viewers a window into what the user is doing and where he’s going. The EFF and other privacy advocates have argued that this data is among the most private information a user can generate and it should be protected at a high level.

“This case involves an important, disputed question that implicates the privacy of all Connecticut citizens: whether historical cell site location information (CSLI)–records collected and held by a cell phone company and capable of establishing a person’s location, is patterns of movement and ultimately his associations and affiliations–should be protected by the requirements of a search warrant,” the brief says.

“Little is more revealing than a person’s movements over time.”

The EFF brief explains that the huge expansion of cell-phone usage in recent years has led to a concurrent expansion in the networks of towers that providers maintain. This, along with the increased speeds of cellular networks, have greatly increased the precision with which someone can be tracked using CSLI. That means that the intrusions on users’ expectations of privacy can be that much greater, the EFF says.

“Long-term electronic surveillance poses the serious risk of upsetting the traditional relationship between citizen and state by avoiding what has long been the ‘greatest protection of privacy’: ‘practical’ restraints such as the cost and difficulty of maintaining long term, covert surveillance,” the brief says.

Image from Flickr photos of Razor512.

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