Judge Calls Location-Tracking Orwellian, While Congress Moves to Legalize It
by Alexander Higgins
August 24, 2011
Congress And The Courts Share Conflicting Views Over The Right Of The Government To Use ‘Orwellian’ Big Brother 4th Amendment Violating Tracking Techniques
A federal judge’s decision requiring the government to get a court warrant before obtaining mobile-phone location data is one of a string of conflicting opinions on the topic. It comes as lawmakers and the Supreme Court weigh in on the hot-button issue of locational privacy.
U.S. District Judge Nicholas Garaufis ruled on Tuesday that the government can only acquire cellphone location data on a surveillance target with a full-blown “probable cause” warrant from a judge. The government had argued that it’s entitled to the data whenever it’s “relevant” to a criminal investigation — a lower standard. The feds were seeking 113 days worth of cell-site data, or “recorded information identifying the base-station towers and sectors that received transmissions” from the target’s cellphone.
“While the government’s monitoring of our thoughts may be the archetypical Orwellian intrusion, the government’s surveillance of our movements over a considerable time period through new technologies, such as the collection of cell-site-location records, without the protections of the Fourth Amendment, puts our country far closer to Oceania than our Constitution permits,” (.pdf) the judge wrote.
“It is time that the courts begin to address whether revolutionary changes in technology require changes to existing Fourth Amendment doctrine,” Judge Garaufis wrote. “Here, the court concludes only that existing Fourth Amendment doctrine must be interpreted so as to afford constitutional protection to the cumulative cell-site-location records requested here.”
But the decision, which isn’t binding on other courts, is far from the the last word on the issue of locational privacy. A similar case is already scheduled for review by the Supreme Court. And on Capitol Hill, Senate Judiciary Committee Chairman Patrick Leahy (D-Vermont) has proposed legislation that would make the government’s position in the case before Garaufis the law of the land, weakening privacy along the way.