Justice Department Not Appealing Cell Phone Surveillance Cases

DOJ's Decision Denies Courts Guidance on When to Authorize Tracking

San Francisco - The US Department of Justice (DOJ) has told the Electronic
Frontier Foundation (EFF) that it will not appeal a New York decision that
forcefully rejected its request to track a cell phone user without first
showing probable cause of a crime. It also appears that DOJ will not appeal
a similar opinion recently issued in Texas.

Last week in the Eastern District of New York, Federal Magistrate Judge
James Orenstein, in a scathing opinion, rejected DOJ's request to track a
cell phone without a warrant, agreeing with a brief EFF filed in the case.
Describing the government's justifications for the tracking request as
"unsupported," "misleading," and "contrived," Orenstein ruled that tracking
cell phone users in real time required a showing of probable cause that a
crime is being committed. Earlier this month, another federal magistrate
judge in the Southern District of Texas published his own opinion denying
another government application for a cell phone tracking order. DOJ has
failed to file timely objections with the District Court in that case, too.
Although DOJ may still decide to appeal that case to the Fifth Circuit, its
choice not to appeal the nearly identical opinion in the New York case makes
that seem unlikely.

"The government's decision not to appeal either of these cases is
disappointing," explained EFF staff attorney Kevin Bankston. "The magistrate
judge in New York explicitly encouraged the government to appeal the
decision so that he and his fellow judges around the country could get some
guidance from the higher courts. The very important question of when the
government can track your cell phone remains an open question that should be
argued openly in the appeals court, not litigated piece-meal in lower-court
proceedings where the government is secretly presenting cell phone tracking

An October 28 story in the Washington Post reported that, when questioned
about the court decisions, "Justice Department officials countered that
courts around the country have granted many such orders in the past without
requiring probable cause."

"The Justice Department has been arguing for warrantless cell phone tracking
in secret proceedings with magistrate judges across the country, probably
for years," said Bankston. "My biggest fear is that DOJ intends to continue
these illegal surveillance orders in secret, while avoiding scrutiny from
higher courts."

You can read the full text of Judge Orenstein's opinion, and the similar
Texas opinion, at http://www.eff.org/legal/cases/USA_v_PenRegister.


Kevin Bankston
Staff Attorney
Electronic Frontier Foundation

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