The Department of Justice is playing roulette with federal judges, refusing to appeal decisions that go against them, and just finding another judge who might be more likely to buy their crap arguments. So far, out of four cases being tracked by the Electronic Frontier Foundation, three judges have told DOJ to buzz off, and one bought the crap DOJ fed them.
The issue at hand is tracking the location of a wireless phone. As you probably aren’t aware, your cell phone can be used to locate you whenever the phone is turned on, even if you aren’t on a call, and even if you have the emergency GPS function “disabled” the phone can still be tracked to within 300 feet or so.
Mark Rasch, who once headed the DOJ’s computer crime unit, wrote an article where he explains the points of law involved in tracking phone calls and explores the legal issues. It’s well worth the 10-minute read. Here’s a choice cut:
What the government was trying to do in these three cases, one in the Eastern District of New York (Long Island), one in Maryland, and one in Texas, was to obtain “prospective” cell location data. That is, they wanted the court to order the cell companies to tell them whenever a particular cell phone moved, where it went, and how long it was there.
It is important to note that all three of the courts recognized that the government could get this information if it needed it. All three courts also recognized that they had the authority to order such prospective cell location data. At issue was the legal standard the government had to meet to obtain the information. — Mark Rasch
The three courts ruled that DOJ needed probable cause in order to obtain the real-time tracking data, while the last court said that whatever lame excuse the DOJ gave was good enough. (Rasch’s article was written prior to the fourth court’s ruling.)