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California Federal Judge to Hear Case Regarding Cell Phone Privacy

Judge Lucy Koh of the Northern District of California will hear a case to decide whether or not government officials need search warrants to access cell phone tower data. The information from the towers can be very useful in determining the location of suspects as well as helpful in gaining other valuable information for prosecuting a case. Judge Koh will decide if the Fourth Amendment can apply to users' cell phone tower data, which has historically been made readily available to government investigators without search warrants.

Currently, the government is able to gather cell phone tower data via Section 2703(d) of the Stored Communications Act ("SCA"). Under the SCA, government officials can get cell phone tower data by obtaining a court order rather than a formal search warrant, a more informal and less time-consuming process. The Third, Fifth, and Eleventh Federal Circuit Courts have already ruled that the government can access cell phone tower data under the lower threshold required by the Stored Communications Act. However, earlier this year, two federal district judges have disagreed with the circuit courts. In March, Judge Susan Illston in the Northern District of California Magistrate ruled that prosecutors should have obtained a warrant to get cell phone tower data. Then in April, Judge Howard Lloyd, also located in the Northern District of California, agreed with Judge Illston's holding and ruled that "until binding authority says otherwise, that in order to get cell site information, prospective or historical, the government must obtain a search warrant."

Law professor, Brian Owsley says that the general consensus is that the way cell phone tower data is currently gathered - via a court order under the SCA - is appropriate.. However, he also argued that when cell phone tower data is used in real-time, it is being utilized more like a tracking device, which the Supreme Court ruled can only be used after getting a search warrant.

Linda Lye, a senior attorney at the American Civil Liberties Union opined that Judge Koh's decision to hear case offers a great opportunity to curtail the government's access to citizens' cell phone data. She said that many decisions about access to surveillance "are made as a result of ex parte proceedings to avoid tipping off suspects." She further argues that such proceedings may allow the government "to make surveillance law on its own and in secret."

It will be interesting to see how Judge Koh rules on this issue and if higher courts will hear the issue as well.

If you have any questions regarding this subject or this posting, please contact Valerie Chang ([email protected]) or Michael Ols ([email protected]). We can also be reached toll-free at (866) 540-5505.

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