Hearing to probe cellular data legal status

English: A cell phone tower in Palatine, Illin...

A cell phone tower in Palatine, Illinois, USA.

Foundation fights for cellular phone users’ privacy in Tuesday hearing

By ECM Plus staff

ECM Plus +++ The Electronic Frontier Foundation will urge a federal appeals court on Tuesday to recognize cellular phone users’ privacy rights and require that the government obtain a warrant before collecting cell phone location information.

According to the Foundation, the oral argument is set for 9 a.m. on October 2nd in New Orleans.

At issue in Tuesday’s hearing are government requests for judicial orders authorizing the disclosure of 60 days of location data from two separate cell phone companies as part of a routine law enforcement investigation.

A magistrate judge denied the request, saying the government needed to apply for a search warrant supported by probable cause to obtain the information.

The district court judge agreed with the magistrate’s finding, and the government appealed the decision to the U.S. Court of Appeals for the 5th Circuit.

In this case – and in many others across the U.S. – the government claims that cell phone users give up their privacy rights because they have voluntarily disclosed their physical location to the cell phone providers every time a phone connects to the provider’s cell tower. Government attorneys argue this means investigators do not need a warrant to get access to location history.

However, this theory undermines privacy in nearly any networked communication. At Tuesday’s hearing, EFF Staff Attorney Hanni Fakhoury will argue that obtaining a warrant for cell location data is essential to ensuring Fourth Amendment protections.

Tuesday’s hearing comes just weeks after the U.S. Court of Appeals for the 6th Circuit allowed the government access to cell phone location records without a warrant. That conflicts with a 2010 decision from the U.S. Court of Appeals for the 3rd Circuit, which ruled that a court could require the government to obtain a search warrant to access location information.

The case being argued Tuesday is just the third case to reach the federal appellate courts on this issue, and the conflicting circuit court decisions could encourage Supreme Court attention.

WHAT: Oral argument In Re: Application for Historical Cell Site Data – WHEN: Tuesday, October 2, 9 a.m. – WHERE: John Minor Wisdom United States Court of Appeals Building Room 265, 600 Camp Street, New Orleans, LA 70130



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