EFF: Court Issues Surveillance Smack-Down to Justice Department

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Electronic Frontier Foundation Media Release

For Immediate Release: Wednesday, October 26, 2005

Contact:

Kevin Bankston
   Staff Attorney
   Electronic Frontier Foundation
   bankston@xxxxxxx
   +1 415 436-9333 x126

Kurt Opsahl
   Staff Attorney
   Electronic Frontier Foundation
   kurt@xxxxxxx
   +1 415 436 9333 x106

Court Issues Surveillance Smack-Down to Justice Department

No Cell Phone Location Tracking Without Probable Cause

New York - Agreeing with a brief submitted by EFF, a
federal judge forcefully rejected the government's request
to track the location of a mobile phone user without a
warrant.

Strongly reaffirming an earlier decision, Federal
Magistrate James Orenstein in New York comprehensively
smacked down every argument made by the government in an
extensive, fifty-seven page opinion issued this week.
Judge Orenstein decided, as EFF has urged, that tracking
cell phone users in real time required a showing of
probable cause that a crime was being committed.    Judge
Orenstein's opinion was decisive, and referred to
government arguments variously as "unsupported,"
"misleading," "contrived," and a "Hail Mary."

"This is a true victory for privacy in the digital age,
where nearly any mobile communications device you use might
be converted into a tracking device," said EFF Staff
Attorney Kevin Bankston. "Combined with a similar decision
this month from a federal court in Texas, I think we're
seeing a trend--judges are starting to realize that when it
comes to surveillance issues, the DOJ has been pulling the
wool over their eyes for far too long."

Earlier this month, a magistrate judge in Texas, following
the lead of Orenstein's original decision, published his
own decision denying a government application for a cell
phone tracking order.  That ruling, along with Judge
Orenstein's two decisions, revealed that the DOJ has
routinely been securing court orders for real-time cell
phone tracking without probable cause and without any law
authorizing the surveillance.

"The Justice Department's abuse of the law here is probably
just the tip of the iceberg," said EFF Staff Attorney Kurt
Opsahl.  "The routine transformation of your mobile phone
into a tracking device, without any legal authority, raises
an obvious and very troubling question:  what other new
surveillance powers has the government been creating out of
whole cloth and how long have they been getting away with
it?"

The government is expected to appeal both decisions and EFF
intends to participate as a friend of the court in each
case.

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

For this release:
http://www.eff.org/news/archives/2005_10.php#004090

About EFF

The Electronic Frontier Foundation is the leading civil
liberties organization working to protect rights in the
digital world. Founded in 1990, EFF actively encourages and
challenges industry and government to support free
expression and privacy online. EFF is a member-supported
organization and maintains one of the most linked-to
websites in the world at http://www.eff.org/


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