Thursday, December 30, 2010

NY Magistrate Judge (Again) Refuses to Allow Government to Obtain Cell Site Information Without a Warrant

A Federal magistrate judge in New York has refused to issue an order requiring a cell phone company to provide cell site information about a customer to the government. The information was sought for a criminal investigation. The Order is here.

In his order, Magistrate Judge Orenstein stuck with his previous view that the Fourth amendment requires that the government obtain a warrant for the information. Interestingly, his previous opinion was reversed. But Magistrate Judge Orenstien is convinced he is correct, and believes that recent opinions bolster that view.

The Magistrate Judge points to opinions that deal with important Fourth Amendment issues presented by the retention of cell site information by cell phone users. In particular:

  1. The Fourth Amendment does not apply because the location records at issue are held by a third party service provider rather than by the subscriber whose movements they reflect. See here on the blog for a recent post on this issue.
  2. The Fourth Amendment does not apply because a cell phone users voluntarily expose information about their location and therefore have no reasonable expectation of privacy in such records. See here on the blog for early thoughts on this, for example.

In doing so, Judge Orenstein drew a parallel between the information retained by cell phone companies and emails held by a provider. The Magistrate Judge relied upon the recent opinion from the Sixth Circuit holding that people had a reasonable expectation of privacy in the emails, even though they did not maintain physical possession of the messages. See here on the blog for a discussion of that decision. Some observers (who remain nameless) had suggested that this opinion was limited because the court believed emails were like regular mail. But I think the opinion has broader application in shaping the expectation of privacy in electronic data, regardless of where the data is maintained.

An important final point. This decision does not mean the government can never get the information. It just means the government must obtain a warrant, which requires probable cause.

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