By Ryan Knutson, Thomas Gryta and Devlin Barrett
AT&T Inc. said federal investigators might need a warrant to
gather data about cellphone users' locations, challenging the more
permissive legal framework the government has used for years.
Investigators must get permission from a judge before obtaining
location data from a carrier like AT&T. But the standard of
proof is lower than what is required for a warrant, thanks to
Supreme Court decisions in the 1970s.
The high court ruled that the government could pull phone
records without probable cause because they were business records
held by the phone companies, and not private documents.
AT&T, in a friend-of-the-court brief filed Monday in an
appeals-court case, said the high court's reasoning applies poorly
"to how individuals interact with one another and with information
using modern digital devices."
"Nothing in those [prior court] decisions contemplated, much
less required, a legal regime that forces individuals to choose
between maintaining their privacy and participating in the emerging
social, political, and economic world facilitated by the use of
today's mobile devices or other location-based services," the
company said.
A Justice Department spokesman declined to comment.
The case, pending before the U.S. Court of Appeals for the 11th
Circuit, involves Quartavious Davis, who in 2012 was sentenced to
nearly 162 years in prison for his involvement in a string of seven
robberies in the Miami area. After getting a judge's order,
investigators obtained 67 days' worth of cellphone location data
that placed Mr. Davis near the scenes of the crimes.
A three-judge panel of the court ruled this summer that such
records should be protected under the Fourth Amendment, which
guards against unreasonable searches and seizures. The government
appealed, and oral arguments are scheduled for early next year.
AT&T said in its filing that it wants the courts to set a
clear standard for the type of approval the government needs in
order to obtain cellphone location data, and that it isn't taking a
position on whether the standard should be a warrant. But its
filing was significant because AT&T's arguments appeared to
undermine the government's historical rationale for obtaining such
data, legal experts said. Moreover, the highly regulated telecom
industry generally has been more cooperative with the government
than technology companies, which have taken a tougher stance
recently on government surveillance.
Americans increasingly rely on cellphones to make calls, send
messages and get directions, among other things, and many rarely
leave home without one. Phone companies typically retain the
location of the closest cell tower each time a cellphone user
places or receives a call, sends a text message or establishes a
data connection for purposes like downloading email.
The government has made heavy use of that data when
investigating crimes. Together, AT&T and Verizon Communications
Inc. got nearly 265,000 law-enforcement and civil data requests in
the U.S. during the first six months of 2014.
"It gives the police a power that they have never had before in
the history of law enforcement, which is a time machine into where
somebody was going and what somebody was doing in the past," said
Nathan Freed Wessler, an American Civil Liberties Union lawyer who
has also filed a brief in the case. "It's an incredibly powerful
investigative tool. And with an appropriate warrant police can get
that, but what is absolutely essential is they can't just sort of
walk their way into that time machine without demonstrating
probable cause."
The government argued in a brief filed in August that location
data "help to deflect suspicion from the innocent, build probable
cause against the guilty, aid in the search for truth, and
judiciously allocate scarce investigative resources. Those
real-world benefits come at a negligible cost to individual
privacy."
The government also argues that location records are less
detailed than global-positioning-system records, and can't be used
to track a person's location in real time. "In addition, the
vicinity information revealed is useful only if one already has a
point of reference--in this case, for example, the robbery
locations--and the records themselves do not provide a basis for
ascertaining that point of reference," the Justice Department wrote
in the August brief.
The issue flared up again last week when The Wall Street Journal
disclosed the existence of a long-running secret Justice Department
program that uses devices on airplanes to collect data from the
cellphones of large numbers of everyday Americans to search for
fugitives or criminal suspects.
The devices, which mimic a cellphone tower, are used to locate
suspects. The government has said the practice is subject to
judicial approval, but hasn't said exactly how.
The issue is likely to be settled eventually by the Supreme
Court, said Ric Simmons, a professor at Ohio State University's
Moritz College of Law. "The law is in the state of flux," he said.
"It is definitely foggy."
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