Is that a cellphone in your pocket or are you just glad to for me to see you?
Federal law enforcement agents are "routinely" seeking court orders for cellphone companies to provide them with realtime positioning data on suspects - often without even a pretense of a showing of probable cause, The Washington Post reports.
And while many judges have been complying - granting orders without a showing of probable cause that a crime is taking place or that the tracking will even yield relevant evidence - at least one federal judge expressed outrage at the request.
Magistrate Judge Brian L. Owsley, of the Corpus Christi division of the Southern District of Texas, said the agent's affidavit failed to focus on "specifics necessary to establish probable cause, such as relevant dates, names and places."
Owsley decided to publish his opinion, which explained that the agent failed to provide "sufficient specific information to support the assertion" that the phone was being used in "criminal" activity. Instead, Owsley wrote, the agent simply alleged that the subject trafficked in narcotics and used the phone to do so. The agent stated that the DEA had " 'identified' or 'determined' certain matters," Owsley wrote, but "these identifications, determinations or revelations are not facts, but simply conclusions by the agency."
How are officials getting around the Fourth Amendment's requirement of probable cause? They're relying on two federal statutes, the Stored Communications Act and the Pen Register Statute, the Post reports.
Those statutes carry a lower standard, that law enforcement show "specific and articulable facts" that show there are reasonable grounds to believe the obtained data will be "relevant and material."
While some judges are unwilling to issue warrants on less than probable cause, judges in most districts are granting the requests.
"Permitting surreptitious conversion of a cellphone into a tracking device without probable cause raises serious Fourth Amendment concerns especially when the phone is in a house or other place where privacy is reasonably expected," said Judge Stephen William Smith of the Southern District of Texas, whose 2005 opinion on the matter was among the first published.
But other judges, like Magistrate Judge Gabriel W. Gorenstein of the Southern District of New York, found that because the government didn't install the devices and users willingly carried them, no warrant was needed.
Meanwhile the Justice Dept. says law enforcement should obtain warrants based on probable cause to get location data "in a private area not accessible to the public," a spokesman said.
"Law enforcement has absolutely no interest in tracking the locations of law-abiding citizens. None whatsoever," Justice Dept. spokesman Dean Boyd said. "What we're doing is going through the courts to lawfully obtain data that will help us locate criminal targets, sometimes in cases where lives are literally hanging in the balance, such as a child abduction or serial murderer on the loose."