FindLaw |

Find a Lawyer. Find Answers.

Government May Track Cell Phone Movements, N.Y. Court Says

The provisions of two federal laws on electronic communications, when read together, allow the government to track the locations of cell phones without a showing of probable cause, a federal judge in Manhattan has decided.

U.S. District Judge Lewis Kaplan noted that the information sought by the government would reveal the general location of a particular mobile phone and, in some circumstances, allow law enforcement to track the movements of that phone in real time.

Last February the government filed a sealed application asking the court to authorize the use of devices to capture the phone numbers of callers to a specific cell phone and the numbers of those called by the cell phone operator. The public cannot access sealed court documents or learn anything about their contents.

The government requested that the court further authorize the devices to capture and report information that identifies the antenna towers receiving transmissions to and from that cell phone.

The Drug Enforcement Agency and other law enforcement agencies would receive the information, an indication that the suspect under surveillance is most likely a drug dealer or smuggler.

In his ruling Judge Kaplan questioned whether Congress intended the two electronic-communications laws at issue to be combined to allow the result he ordered, but said the language of the statutes, when read together, "clearly authorizes" such disclosure.

Several other judges have addressed applications for orders authorizing the disclosure of cell site information under the two laws. While a majority of them have rejected the government's applications, three have held that the two statutes, when read in conjunction, authorize the disclosure of cell site information.

Law enforcement officials have begun to request cell site information when they apply for permission to install "pen registers" and trap-and-trace devices. Such registers and devices record the numbers dialed from or calling to a particular phone, but not the contents of the communications.

In this case the government asked the U.S. District Court for the Southern District of New York for an order authorizing the use of a pen register and trap-and-trace device to capture information that identifies the antenna tower receiving transmissions from the targeted cell phone. With that information, it is possible to follow the movements of a particular phone and, therefore, the person carrying it.

Judge Kaplan noted first that the federal pen register statute allows law enforcement to install and use pen registers and trap-and-trace devices with a court order when collecting information relevant to an ongoing criminal investigation.

The judge said the USA Patriot Act of 2001 expanded the scope of that "relevant information" so that now law enforcement officials could collect "signaling information" rather than simply telephone numbers.

The other law involved in the case is the Stored Communications Act. The statute says a governmental entity may require a telephone service provider to disclose a subscriber's calling records.

The law also permits a court order for that purpose if the government can show there are reasonable grounds to believe the contents of the subscriber's communications are "relevant and material" to an ongoing criminal investigation, Judge Kaplan explained.

He then determined that the cell site information sought by the government is the kind of "record" covered by the Stored Communications Act. He said the law allows the disclosure of historical cell phone records, but does not explicitly limit the government from getting information about the current location of a phone.

The judge concluded that, because cell site information is a subscriber record, the Stored Communications Act permits a court to order the disclosure of such information upon a proper showing of reasonable grounds by the government.

Finally, Judge Kaplan addressed the question of a Fourth Amendment violation and said he could not resolve it in the abstract.

He acknowledged that while there is no legitimate expectation of privacy in the phone numbers dialed from a particular phone, it is not necessarily true that a cell phone user gives up any legitimate expectation of privacy in his or her location by carrying a phone that signals its presence in the network to the service provider.

Therefore, the issue would have to be litigated on a motion to suppress, he said.

Judge Kaplan's order authorized the government to use a pen register and trap-and-trace device to capture calls made and received by the subject cell phone and information that identifies the antenna tower receiving transmissions at the beginning and end of a particular phone call.