Wednesday, September 8, 2010
A Federal Court has recently held that Big Brother (the Federal Government) may need to get a search warrant in order to get cell phone data which will tell the Federal Government just where a certain individual was on a certain date and time. In the case of In re the Application of the USA, Electronic Communication Service, the Third Federal Circuit Court of Appeals has ruled that Federal prosecutors may need to obtain a search warrant when they are attempting to gain cell phone location data. This is another recent Federal Court ruling in the area of criminal investigation and prosecution where Federal "privacy" Constitutional issues collide with ever emerging technology. The Court had to address and discuss how a person's physical cell phone location (which is technically digitally recorded most times a person is on the phone) is considered Constitutionally private. Even more specifically, the Court had to address how a federal statute (which the Federal prosecutor's claimed gave them the ability to get the cell phone location data without a warrant) may conflict with the Federal Constitutional right to privacy. In short summary, the Court held that if the records are deemed to be Constitutionally protected, then, regardless of the federal statute, the federal government must get a search warrant (and, accordingly, prove that there is "probable cause" to believe there was evidence of crime to be gathered). However, the Court also then held that the cell phone location data may not be protected by the Constitution in most cases, and that in order to get that data, the Federal Government will probably not have to meet the "probable cause" standard. This case will not end the debate in this area, but it does a good job at discussing issues that arise when new technology meets a very old Constitution. More cases and rulings are expected to follow, and we will try to keep you all informed.