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:
“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.