Obama Administration: Fourth Amendment Does Not Protect Cell Tower Records

Published July 1, 2009

Law enforcement and other government officials should be able to look at cell phone records without first getting a warrant, according to a position the Obama administration is taking in a federal drug case.

The San Francisco-based Electronic Frontier Foundation, Washington, DC-based Center for Democracy and Technology, and American Civil Liberties Union are urging the federal appeals court to side against the Obama administration. They and other technology and privacy experts say the administration’s position violates the constitutional right against unlawful searches and seizures.

The dispute stems from a case involving large-scale drug trafficking and associated crimes, much of which was planned and carried out over several states via cell phone calls.

Warrantless Searches

The defendants claim the federal government cannot compel mobile phone companies to release historical cell-tower information of a phone number—evidence the prosecution wanted in the case—without first establishing probable cause and obtaining a search warrant.

Historical cell-site location information includes the tower connected at the beginning of a call and at the end of the call.

Mobile providers have the ability to track a cell phone’s whereabouts every seven seconds, and they keep those records on file for up to 18 months.

A federal judge in Philadelphia late last year denied the government access to cell records information until it handed over an application for a warrant, citing the Fourth Amendment. The government refused, and the case moved on to the Third U.S. Circuit Court of Appeals in Philadelphia.

Government: Records Aren’t Private

In February the U.S. Department of Justice explained why it should not need a warrant before seizing cell records. The Obama administration says the Fourth Amendment prohibition against unreasonable searches and seizures does not apply to cell-site information because there is no privacy interest involved.

“Because wireless carriers regularly generate and retain the records at issue, and because these records provide only a very general indication of a user’s whereabouts at certain times in the past, the requested cell-site records do not implicate a Fourth Amendment privacy interest,” said the Justice Department in its brief.

The Obama administration also argued there is no need for a warrant because “cell-site information is non-content information, as it does not provide the content of any phone conversation the user has had over the cell phone.”

At press time the appeals court had yet to rule on the case.

Experts Concerned

The case could have wide-ranging implications for the privacy of Americans because most citizens either have or will in their lifetimes have a mobile phone.

Susan Freiwald of the University of South Florida School of Law and Peter Swire of Ohio State University voiced their opposition to the government’s position in a paper published in March by the American Constitution Society. The legal experts think the government’s acquisition of cell-site records should be subject to the same procedures and protections used in wiretapping and video surveillance.

“Because cell-site location information (CSLI) acquisition is hidden, indiscriminate, and intrusive—and because it reveals information over a period of time—it should be subject to the highest level of Fourth Amendment oversight,” Freiwald and Swire wrote.

Daniel Ballon, a senior technology expert for the San Francisco-based Pacific Research Institute, says the government always should have to obtain a warrant, no matter what technology is subject to a search.

“We shouldn’t need to have this same debate for every new technology,” Ballon said. “Our constitutional protections have held up well for over 200 years. It doesn’t matter whether we’re talking about the telegraph or cell phones.”

Technological Confusion

Bruce Abramson, an intellectual property expert and president of the San Francisco-based consultancy Informationism, Inc., attributes the difference between the treatment of cell phone and land line records to the way in which they were introduced to the courts. He says cell phones started off on the wrong foot in the justice system because their use was not as widespread when they initially hit the marketplace and the courts.

“As a result, cell phone conversations are [judged as] entitled to less protection than land lines. Normal people didn’t use cell phones when they were initially introduced to the courts,” Abramson said. “At that time, cell phones were mostly used by emergency professionals and drug dealers, who used them for improper conversations.

“You have to appreciate the process,” Abramson added. “There has been a string of cases that have gone to the Supreme Court about the use of new technologies in criminal investigations, and none of it makes any sense. What it basically comes down to is how mature and widely used the technology is when it makes it to the court system.

“Should there be any difference between the way we deal with cell and land telephony? No. But it’s a completely different technology and has completely different rules,” Abramson concluded.

Aricka Flowers ([email protected]) writes from Chicago.

For more information …

Department of Justice brief to federal appeals court, February 2009: http://blog.wired.com/27bstroke6/files/dojcellphone.pdf

“Phone Tracking Should Require a Warrant,” Susan Freiwald and Peter Swire, April 17, 2009: http://www.acslaw.org/node/13287

Brief by Electronic Frontier Foundation, Center for Democracy and Technology, and American Civil Liberties Union arguing against U.S. Department of Justice: http://www.wired.com/images_blogs/threatlevel/files/effaclucell.pdf