Thursday, December 22, 2005

Bad Ruling on Cell Phone Tracking

Via The EFF.

Yesterday [20 December 2005], Magistrate Judge Gorenstein of the federal court for the Southern District of New York issued an opinion [.pdf] permitting the government to use cell site data to track a cell phone's physical location, without the government having to obtain a search warrant based on probable cause.

Judge Gorenstein's flawed legal analysis is in sharp contrast to three other federal court opinions strongly rejecting the government’s legal arguments, including a decision by Magistrate Judge Orenstein in the Eastern District of New York. While Judge Orenstein referred to the government's legal arguments variously as "unsupported," "misleading," and "contrived," and a Texas court called the convolutions of the government’s theory “perverse” and likened its twists and turns to a "three-rail bank shot," Judge Gorenstein bought the government's arguments hook, line and sinker.

Unfortunately, this dangerous new opinion falls into a procedural black hole. Because the DOJ is the only party in these surveillance cases, there's no one left to appeal the decision. Meanwhile, the DOJ has refused to appeal all three times it has lost, despite emphatic requests by the Texas and Eastern District magistrates. The result is that other magistrates across the country won't get clear guidance from the appeals courts on this issue.

More here.


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