3rd Circuit: Probable Cause May Be Needed for Cell Phone Location Data

In the first appellate ruling on a cutting-edge privacy issue, the 3rd U.S. Circuit Court of Appeals has declared that cell phone location data may trigger Fourth Amendment concerns and that prosecutors demanding access to such records may be required at times to satisfy a probable cause standard.

The ruling in In re Application of the USA - Electronic Communication Service (pdf) is a setback for the Justice Department, which had argued that judges are required under §2703 of the Stored Communications Act to issue orders for access to such data whenever prosecutors show that it would be "material" and "relevant" to an ongoing investigation.

But the appellate court's ruling also reversed a decision by U.S. Magistrate Judge Lisa Pupo Lenihan of the Western District of Pennsylvania that said §2703 didn't apply and that prosecutors must always show probable cause to access such data.

Instead, the appellate court largely adopted the position espoused by a coalition of civil rights and privacy groups who, in an amicus brief, argued that although the records are covered by §2703, judges must be free to decide when to demand that prosecutors satisfy the probable cause standard.

"Because the statute as presently written gives the magistrate judge the option to require a warrant showing probable cause, we are unwilling to remove that option although it is an option to be used sparingly," U.S. Circuit Judge Dolores K. Sloviter wrote in an opinion joined by Judge Jane R. Roth and partly joined by visiting 9th Circuit Judge A. Wallace Tashima.

The ruling was hailed as an important protection of privacy rights by professor Susan Freiwald of the University of San Francisco School of Law, an expert in the area of privacy and technology, who filed her own amicus brief and was one of two lawyers arguing against the government.

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Source: law.com
By: Shannon P. Duffy