Government

TX Judge Rules Warrantless Acquisition of Cell Phone Records Unconstitutional

Warrantless searches using various forms of technology and the extent to which they are covered under the Fourth Amendment of the Constitution has seen a lot of time in court lately. The Supreme Court recently heard a highly publicized case on warrantless GPS tracking. But most recently, a Texas District Court judge heard a government appeal over a 2010 ruling that said cell phone records were protected under the Fourth Amendment and therefore required a warrant to obtain.

U.S. District Court Judge Lynn N. Hughes of the Southern District of Texas upheld the original ruling declaring that cell phone records acquired without a warrant was unconstitutional. The Wall Street Journal has more on the story:

Texas District Judge Upholds Ruling That Requires a Warrant to Obtain Cell Phone Records

“The records would show the date, time, called number, and location of the telephone when the call was made,” Judge Hughes wrote in the decision, dated Nov. 11. “These data are constitutionally protected from this intrusion.”

[...]

Since 2005, more than a dozen magistrate judges have written opinions denying applications for court orders to track cellphones without search warrants. The nation’s roughly 500 magistrate judges handle applications for search warrants and other types of electronic surveillance in federal courts.

Of course, some have upheld warrantless searches. Last week, U.S. District Court Judge Liam O’Grady ruled that the government could obtain data from the Twitter accounts of three WikiLeaks without a search warrant.

[...]

“When the government requests records from cellular services, data disclosing the location of the telephone at the time of particular calls may be acquired only by a warrant issued on probable cause,” Judge Hughes wrote. “The standard under the [existing law] is below that required by the Constitution.”

In this specific case, Magistrate Judge Stephen Smith of U.S. District Court in the Southern District of Texas ruled last year that the government would need a warrant to access 60 days worth of cell phone information, according to WSJ. He wrote:

“for a cellphone user born in 1984, however, it is now conceivable that every movement of his adult life can be imperceptibly captured, compiled, and retrieved from a digital dossier somewhere in a computer cloud. Now as then, the Fourth Amendment remains our polestar.”

WSJ reports that the government then appealed saying “a customer has no privacy interest in business records held by a cell phone provider, as they are not the customer’s private papers.”

Cell phone records fall under the jurisdiction of the Electronic Communications Privacy Act, which also includes email and many have been calling it outdated since the Internet and digital technology have significantly evolved since its establishment in 1986.

[H/T Gizmodo]

Comments (30)

  • CryptoCop
    Posted on November 21, 2011 at 7:09am

    I love how all of the commenters here are acting like A) That they understand the nature of this debate and B) That this is some “Constitutional victory” that is going to keep the government from finding out what they want to know. The reason warrants were not obtained in the first place is that, as the government argued, there is a legitimate position (upheld in other jurisdictions) that the records belong to the cell phone company and that a court order is sufficient. It‘s not that the cops don’t get a warrant because they CAN’T get a warrant, it’s because they were told it was not necessary. The fourth amendment keeps you safe from unreasonable search and seizure of YOUR personal papers, effects, etc. The argument that the PHONE COMPANIES’ records are YOUR personal effects is not established, hence one judge saying it is so and others saying not. Either way, if the cops have to get warrants, it’s just as easy as getting a court order and they will still do it. It’s not going to make a difference in the end as far as real world application goes, it’s just going to change the paperwork they use.

    Report Post »  
  • Cornflake
    Posted on November 21, 2011 at 2:47am

    Dang, I have me a few cowboy hats, and I’m thinking about moving to Texas! Finally, an intelligent judge, and the judge stood up to the federal government! Wow! The Patriot Act, has been reeming us for many years now, and it has gotten out of hand. I knew when Ronald Regan decided that forced drug test were to be carried out on rail workers and airline personnel, that there would soon be forced drug testing for the burger flippers at fastfood establishments. I was right! The argument of the government that the customer has no concern over a company’s business records is absurd. If those business records are about a client who pays for their service, and the business record is directly in regard to their service plan, then how can the government even make such a stupid argument? Ah, but this administration has no fear, because it has stacked the supreme court to rule in their favor for whatever they decide they wish to do! The entire system has become so corrupt it makes one want to scream.

    Report Post »  
  • Snowleopard {gallery of cat folks}
    Posted on November 20, 2011 at 9:55pm

    Excellent!!!

    Report Post » Snowleopard {gallery of cat folks}  
  • Smokey_Bojangles
    Posted on November 19, 2011 at 11:45pm

    I bet Yaw are still support Government Forced Drug testing. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

    Report Post » Smokey_Bojangles  
  • Smokey_Bojangles
    Posted on November 19, 2011 at 11:27pm

    Yeee haaawww!!!!

    Report Post » Smokey_Bojangles  
  • PoliticalJunkieToo
    Posted on November 19, 2011 at 7:55pm

    FINALLY at least one state stopped this 4th amendment abuse.

    Michigan judges said police COULD download it. What do police do with drivers’ cell phone information? Who do they show it to? How long do they keep it. Where do they store it?

    Cop scanner ‘crosses line’
    http://www.bostonherald.com/news/regional/view.bg?articleid=1353264

    Michigan judge says Police CAN Steal your Cell Phone Data
    http://www.theblaze.com/stories/mich-cops-can-now-steal-your-cell-phone-data-without-the-owner-knowing/

    Here is the Gadget Police use to down load Cell Phone information
    http://arstechnica.com/tech-policy/news/2011/04/michigan-state-police-we-only-grab-your-cellphone-data-with-a-warrant.ars

    Report Post »  
  • HumbleCitizen
    Posted on November 19, 2011 at 8:44am

    I wonder how many LOCAL newspapers and radio stations will actually carry this story since it promotes liberty and the constitution?

    Report Post » HumbleCitizen  
  • Bronco II
    Posted on November 19, 2011 at 8:39am

    I let my prepaid cell phone go didn’t fit into my priority budget.Mortgage,electric,food,water those are my top priorities.I separate my needs from my wants.If I can‘t afford it I DON’T NEED IT.I also stopped my Direct TV and don‘t miss it at all I’ve got GBTV and the converter box good enough for me.I’m Blessed.

    Report Post » Bronco II  
  • wntsmallgov
    Posted on November 19, 2011 at 5:39am

    Texas will lead the way in coming dark ages of America. But it just shows everyone how scared that rest of the courts are of our own government.

    Report Post » wntsmallgov  
    • trench99
      Posted on November 21, 2011 at 8:45am

      The people of Texas need not pat themselves too much they still have a long way to go considering;
      1.) you allow illegals to work & help educate them 2.) You’ve got local cops writing tickets to students in school for minor infractions 3.) You‘ve allowed your state govt to mandate gardisil as a vaccination not really understanding the drug or it’s side effects.

      Report Post »  
  • KangarooJack
    Posted on November 18, 2011 at 8:24pm

    Wish we had more of Texas up here in Michigan…+ the other 46 (lol) States.

    Report Post » KangarooJack  
    • Salvatore
      Posted on November 18, 2011 at 10:19pm

      Thank you for saying that. I invite you to come to Texas.

      Report Post »  
    • pamela kay
      Posted on November 19, 2011 at 2:04am

      Here in Ohio as well. I have a shout out to all Texans, how satisfied are you with Rick Perry, and do you believe he would be a good president?

      pamela kay  
  • garbagecanlogic
    Posted on November 18, 2011 at 6:39pm

    An intelligent judge………..where the hell did he come from?

    The U.S. Out Of The U.N.
    The U.N. Out Of The U.S.

    Report Post »  
  • thegreatcarnac
    Posted on November 18, 2011 at 5:55pm

    I agree. Texas is always on the right side……I agree with the ruling also.

    Report Post »  
  • ConstitutionFreedomLover
    Posted on November 18, 2011 at 5:24pm

    Yippeee…I love living in the great state of TX!!! ;)

    Report Post » ConstitutionFreedomLover  
    • trench99
      Posted on November 21, 2011 at 8:48am

      Get ol Juan to bring in the gardisil shots to force on little girls & if parents complain call the local cops to drag them into court! Way to go Texas! (Sarcasm!!)

      Report Post »  
  • Baddoggy
    Posted on November 18, 2011 at 4:49pm

    That’s how we roll in Texas…If we could just burn Austin to the ground we would be perfect.

    Report Post » Baddoggy  
    • Salvatore
      Posted on November 18, 2011 at 10:22pm

      You are so right, as in correct. :)

      Report Post »  
    • Liesmasher
      Posted on November 19, 2011 at 11:52am

      Well we could use the city just not the liberals that reside there. Still the only place I have seen an Obama bumper sticker . I asked the driver if she wanted it removed but she just sped off. Lmao.

      Report Post » Liesmasher  
    • Cynic-clinic
      Posted on November 19, 2011 at 12:12pm

      After Austin burns to the ground, move to Brownwood and start life all over again.

      Report Post »  
    • ScienceIsNotEvil
      Posted on November 24, 2011 at 11:41am

      Baddoggy

      Burn a city to the ground. How very islamic of you.

      Report Post »  
  • TexasHunter
    Posted on November 18, 2011 at 4:33pm

    Gotta Love Texas! California do you ever take notes or just think you are the elite which dumb founds you to the point of extinction?

    Report Post » TexasHunter  
    • Irvinemom
      Posted on November 19, 2011 at 12:13am

      We are not all elite there is a lot of Red here in California bad the freaks in the blue has to ruin our state……
      I often say were are going to hell in a hand basket carried by Harris and Brown….

      Report Post »  
  • The10thAmendment
    Posted on November 18, 2011 at 4:28pm

    I’d like to shake the Judges hand. A bold move (even if standing on the Constitution should be the norm, not a move of boldness) in today’s political climate. I’m sure that Holder and Obama are moving against his ruling even at this very moment.

    Report Post » The10thAmendment  
  • OhioRifleman
    Posted on November 18, 2011 at 4:18pm

    This is a step in the right direction!

    Report Post » OhioRifleman  
  • V-MAN MACE
    Posted on November 18, 2011 at 4:06pm

    BIG WIN for LIBERTY!

    Report Post » V-MAN MACE  
    • Ssenkrad
      Posted on November 18, 2011 at 9:08pm

      Agreed! I hope there‘s more stories about judges who stand up for liberty when the rest of our government won’t.

      Report Post » Ssenkrad  
  • GhostOfJefferson
    Posted on November 18, 2011 at 4:06pm

    Yay! :)

    Report Post » GhostOfJefferson  

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