PROSECUTORS IN PITTSBURGH APPEAL RULING OF DENYING CELL PHONE
TRACKING

Federal prosecutors in Pittsburgh are appealing a decision
prohibiting them from seeking cell phone tracking information without
probable cause.

Five federal magistrate judges rebuffed a request from the U.S.
Attorney's Office for the Western District of Pennsylvania, saying it
ran afoul of privacy rights guaranteed by the Fourth Amendment. The
U.S. Attorney's Office appealed last week.

"Although most people don't realize it, they're carrying a tracking
device in their pocket," said Kevin Bankston, a staff attorney with
the Electronic Frontier Foundation, a privacy advocacy group in San
Francisco that has fought U.S. Department of Justice cell phone
tracking requests for the past several years.

When a cell phone is turned on, it constantly relays location
information to towers serving its network. The phone scans for the
strongest signal about every seven seconds.

Federal prosecutors want to obtain that stored information through
warrantless cell phone tracking -- sometimes through real-time
surveillance or, as prosecutors in Pittsburgh requested, through
historic data showing where a person was at any given time.

In urban areas, cell phone tracking information can place a phone
within 200 feet of the nearest tower. Global positioning systems
built in to many cell phones today can track the device to within 50
feet.

Assistant U.S. Attorney Soo Song filed a request under seal in
November seeking an alleged drug dealer's cell phone records based
simply on its relevance to an ongoing investigation. U.S. Magistrate
Judge Lisa Pupo Lenihan noted the government "is experiencing
difficulty in visually surveilling that person."

That wasn't enough to persuade her or the four other magistrates who
signed a 52-page order Feb. 22 rejecting the government's request.

"Americans do not generally know that a record of their whereabouts
is being created whenever they travel about with their cell phones,
or that such record is likely maintained by their cell phone
providers and is potentially subject to review by interested
government officials," Lenihan wrote. "Most Americans would be
appalled by the notion that the government could obtain such a record
without at least a neutral, judicial determination of probable cause."

The government's appeal has been assigned to U.S. District Judge
Terrence McVerry.

In June 2007, there were 243 million cell phone users in the United
States, according to the Cellular Telecommunications and Internet
Association.

Allowing access to cell phone tracking information without warrants
is "particularly vulnerable to abuse," Lenihan noted, because of the
low cost to the government and the undetectable nature of the
electronic transfer.

Since July 2005, federal judges have rejected a majority of at least
12 requests for cell phone tracking information without probable
cause that evidence of a crime likely will be discovered.

Bankston said the practice goes back at least a decade.

"The process is so secret, we don't know what the numbers are," he
said.

Dean Boyd, a spokesman for the Justice Department, declined to
comment on the Pittsburgh case. Instead, he reissued a statement
first released in November in which the department explained its rationale.

"Law enforcement has absolutely no interest in tracking the locations
of law-abiding citizens. None whatsoever," Boyd said. "What we're
doing is going through the courts to lawfully obtain data that will
help us locate criminal targets, sometimes in cases where lives are
literally hanging in the balance, such as a child abduction or a
serial murderer on the loose."

Cell phone tracking data helped federal prosecutors in Ohio win a
conviction against the man who murdered Dr. Gulam Moonda, a prominent
Mercer County urologist, in May 2005. Prosecutors have said the
tracking technology was so precise that it helped them plot the
movements of gunman Damian Bradford, formerly of Beaver County, on
the day he fatally shot Moonda along the Ohio Turnpike.

In addition to potential criminal activity, however, Lenihan noted
cell phone location information could reveal extra-marital affairs or
sexual orientation, physical or mental health treatment, possibly
even political and religious affiliations.