updated 10:30 pm EDT, Tue August 23, 2011
Court order reasserts Fourth Amendment
Judge Nicholas Garaufis of the Eastern District of New York has issued a court order (PDF) requiring government agencies to obtain a warrant when attempting to access cellphone location histories. The ruling contrasts with earlier opinions in separate courts, which considered the location data to fall outside of privacy expectations and Fourth Amendment protections.
"The fiction that the vast majority of the American population consents to warrantless government access to the records of a significant share of their movements by 'choosing' to carry a cell phone must be rejected," Judge Garaufis opined. "In light of drastic developments in technology, the Fourth Amendment doctrine must evolve to preserve cell-phone user's reasonable expectation of privacy in cumulative cell-site-location records."
The judge rejected the argument that cellphone location history is fair game for warrantless monitoring because subscribers give up their Fourth Amendment rights by merely owning a cellphone and using the cell service provided by a third party. Other courts have upheld Fourth Amendment protections for content such as voice recordings and text messages, but considered the location data, gathered from communication with cell towers, to be deserving of less privacy.
"Applying the third-party-disclosure doctrine to cumulative cell-site-location records would permit governmental intrusion into information which is objectively recognized as highly private," Judge Garaufis added. "In order to prevent the Fourth Amendment from losing force in the face of changing technology, Fourth Amendment doctrine has evolved throughout time and must continue to do so."
It remains unclear if the ruling will be challenged. [via Ars Technica]