Groups File Amicus Briefs Regarding Warrantless Seizure of Historical Cell Site Location Data

March 16, 2012. The American Civil Liberties Union (ACLU), Electronic Frontier Foundation (EFF), Center for Democracy and Technology (CDT), and others filed an amicus curiae brief with the U.S. Court of Appeals (5thCir) in In the Matter of the Application of the United States of America for Historical Cell Site Data.

They argued that the Stored Communications Act (SCA) grants court the discretion to require the government to obtain a warrant based upon probable cause before accessing historical cell phone location data. The SCA compels this conclusion, and the Court of Appeals should avoid the 4th Amendment issue.

This is an appeal brought by the US from a judgment of the District Court which upheld a magistrate judge's decision that law enforcement agencies seeking 60 days of cell site location information from wireless service providers must obtain from the court a warrant based upon probable cause. The District Court held that this is a 4th Amendment requirement.

See also, short piece by the CDT's Greg Nojeim.

The Electronic Privacy Information Center (EPIC) filed an amicus curiae brief [41 pages in PDF] on March 16 in this case.

The EPIC argued that consumers have a reasonable expectation of that their cell phone location data will remain private,  and that the "Court should protect individual privacy by holding the Government to a Fourth Amendment probable cause standard when it seeks to obtain comprehensive records concerning an individual’s private activities".

See also, the EPIC web page for this case.

The Department of Justice (DOJ) argued in its brief, filed in February, that consumer location data is business records of the wireless service providers, and that law enforcement can obtain an order from the court under the Section 2703(d) of the SCA, without a showing of probable cause, directing the service providers give law enforcement that data.

Under 18 U.S.C. § 2703(d) the government need only show the court that the information sought is "relevant and material to an ongoing criminal investigation". This is a very low and easy to satisfy standard.

This case is In the Matter of the Application of the United States of America for Historical Cell Site Data, U.S. Court of Appeals for the 5th Circuit, App. Ct. No. 11-20884, an appeal from the U.S. District Court for the Southern District of Texas, Houston Division, D.C. No. 4:11-MC-00223.