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DOJ argues for warrantless cell phone records

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The federal government argues in a brief (.pdf) submitted Feb. 15 to the fifth circuit court of appeals that it doesn't need a warrant to in order to obtain 60 days' worth of historical cell phone usage data, including the location of the cell towers utilized to make calls.

Justice Department officials are appealing a district court's decision to uphold a Pennsylvania magistrate's 2008 decision (.pdf) to deny historical cell phone usage data from T-Mobile and MetroPCS the government sought under the Stored Communications Act. The SCA permits the federal government to obtain a court order compelling a third party to divulge data so long as the information is "relevant and material" to an ongoing criminal investigation.

The Pennsylvania magistrate, Judge Lisa Pupo Lenihan, said the Fourth Amendment requires the government to obtain a warrant, rather than just an order, in order to get the data.

In their brief, Justice officials say cell phone records shouldn't require a warrant, because they are "business records created and stored by a cell phone provider in its ordinary course of business," and that customers have "no privacy interest in cell-site records."

The location data contained in cell-site records, officials add, "are not sufficiently precise to reveal a particular private location in which a cell phone may be found or to reveal a comprehensive record of a person's public movements."

The government's position is rejected by many privacy watchdogs, including the American Civil Liberties Union and the Electronic Frontier Foundation. According to court documents, the ACLU, EFF and the ACLU Foundation of Texas are seeking permission to file a single consolidates amicus curiae brief against the government.

For more:
- download the Justice Department's Feb. 15 brief (.pdf)

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