The Obama administration’s position that the government can force mobile carriers to hand over cellphone tower location information on their customers without a warrant is wrong, two legal scholars say.
"Because CSLI acquisition is hidden, indiscriminate and intrusive, and because it reveals information over a period of time, it should be subject to the highest level of Fourth Amendment oversight (the same procedures used for wiretapping and video surveillance)," the scholars wrote late Friday.
The scholars are Susan Freiwald, of the USF School of Law, and Peter Swire, of Ohio State University.
Their words, published by the American Constitution Society, came a month after the Justice Department made its claim in a little-noticed case that the Fourth Amendment right to be free from unreasonable searches and seizures did not apply.
Most Americans have or will carry a mobile phone in their lifespan, so the outcome could have wide-ranging privacy ramifications. Smartphones, like the iPhone, use cell-tower information to power geo-location applications like Google Maps.
In a case pending before the 3rd U.S. Circuit Court of Appeals, the government maintains it can require federal judges to order mobile phone companies to release historical cell-tower information of a phone number without probable cause — the standard required for a search warrant.
While judges have differed on the issue, the resulting evidence can be used in a criminal prosecution. The case on appeal concerns a Pennsylvania judge who rejected the government’s position in a drug prosecution that the new administration inherited.
Mobile-phone providers keep cell-site information for up to 18 months. Historical cell-site location information includes the tower connected at the beginning of a call and at the end of the call. The government does not claim a warrantless right to cell-site information for future calls, only for calls already dialed.
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