Cell Phone Tracking

Bad Ruling on Cell Phone Tracking: What a Difference a G Makes Yesterday, Magistrate Judge Gorenstein of the federal court for the Southern District of New York issued an opinion 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 governments 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 governments 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. That's why EFF will continue to follow this issue closely, and continue to urge other magistrates who face this question to follow the clear and convincing logic of the three courageous judges who stood up for civil liberties and said no to warrantless cell phone tracking. P.S. The DOJs practice of monitoring cell phone location without probable cause previously inspired us to ask: "What other new surveillance powers has the government been creating out of whole cloth and how long have they been getting away with it?" Recent revelations about President Bush authorizing warrantless wiretaps of Americans by the National Security Agency have given us the beginnings of an answer. Let's hope that's not just the tip of the surveillance iceberg. Fumanchu(myspacer): Incidentally, they cannot track your cell phone for location if you have the battery pulled out. For a while, people have known this was possible, but no court had ever given feds the authority to do so. Cell phones have a pretty bad surveillance record: the A5 algorithm that encrypts most cell phones was cracked by researchers almost ten years ago. Also cell phones can often be used as eavesdropping devices by piggy-backing the broadcast signal (the signal that gives you two or five or whatever bars), but this can be defeated simply by, again, removing the battery/ambient power source...turning it off won't do it. Cell phones can be tracked as to their physical location by triangulating the distance between two or three cell phone towers, which requires intercepting/piggy-backing the same broadcast signal, allowing the same eavesdropping to take place in the process (with the proper equipment).[/color] http://www.eff.org/deeplinks/archives/004272.php

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