(FROM THE WALL STREET JOURNAL 11/19/14)
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 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 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.
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 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."
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