Recent EFF Press Releases
2007-05-23T14:00:05-08:00 2007-05-22T10:42:18-08:00 2007-05-14T00:00:41-08:00 2007-05-10T00:01:01-08:00 Cell TrackingDecember 21, 2005Bad Ruling on Cell Phone Tracking: What a Difference a G MakesYesterday, Magistrate Judge Gorenstein of the federal court for the Southern District of New York issued an opinion permitting the government to use cell site data to track a cell phone's physical location, without the government having to obtain a search warrant based on probable cause. Judge Gorenstein's flawed legal analysis is in sharp contrast to three other federal court opinions strongly rejecting the government’s legal arguments, including a decision by Magistrate Judge Orenstein in the Eastern District of New York. While Judge Orenstein referred to the government's legal arguments variously as "unsupported," "misleading," and "contrived," and a Texas court called the convolutions of the government’s theory “perverse” and likened its twists and turns to a "three-rail bank shot," Judge Gorenstein bought the government's arguments hook, line and sinker. Unfortunately, this dangerous new opinion falls into a procedural black hole. Because the DOJ is the only party in these surveillance cases, there's no one left to appeal the decision. Meanwhile, the DOJ has refused to appeal all three times it has lost, despite emphatic requests by the Texas and Eastern District magistrates. The result is that other magistrates across the country won't get clear guidance from the appeals courts on this issue. That's why EFF will continue to follow this issue closely, and continue to urge other magistrates who face this question to follow the clear and convincing logic of the three courageous judges who stood up for civil liberties and said no to warrantless cell phone tracking. P.S. The DOJ’s practice of monitoring cell phone location without probable cause previously inspired us to ask: "What other new surveillance powers has the government been creating out of whole cloth and how long have they been getting away with it?" Recent revelations about President Bush authorizing warrantless wiretaps of Americans by the National Security Agency have given us the beginnings of an answer. Let's hope that's not just the tip of the surveillance iceberg. Posted by Kevin Bankston at 04:37 PM | Permalink | Technorati
December 01, 2005Location Privacy: 3, Warrantless Cell Phone Tracking: 0When we recently reported that the DOJ had chosen not to appeal two court decisions that forcefully rejected its secret requests to track cell phones without probable cause, we expressed our fear that the government would keep trying to secretly convince other judges to grant these illegal orders while avoiding appellate review. Well, that fear has now been confirmed by a newly-issued third court decision denying a DOJ request for a cell-tracking order, a request that was made after the DOJ chose not to challenge the other two decisions. This time, a federal magistrate judge in Maryland has followed the lead of judges in New York and Texas by refusing to allow the feds to track people's movement via a cell phone unless the government can at least meet the requirements for a search warrant. Even though there are now three published decisions rejecting the government's arguments and none supporting them, we're aware of at least one other case where the DOJ is still pushing for authorization to track a cell phone without a search warrant. At this point, one has to wonder: how many public trips to the woodshed is it going to take before the DOJ either stops seeking these orders, or is willing to subject its claims to appellate court scrutiny? I think we're going to find out soon enough--at this rate, we'll have a dozen new denials by the spring! Posted by Kevin Bankston at 03:58 PM | Permalink | Technorati
November 09, 2005Anti-Cell Phone Tracking Judicial Revolution Spreads to New York CityOne more magistrate judge has refused to allow the government’s practice of secretly using cell phones to track people without probable cause--this time in the Southern District of New York (Manhattan). The magistrate judge declined to grant the government’s request “without further briefing from the Government concerning the propriety of issuing these orders.” The SDNY judge sought further briefing due to an August decision from a magistrate judge in the Eastern District of New York (Long Island) denying a similar government request. The government provided a letter brief in support, and, upon the court’s request, the SDNY Federal Defender’s Office responded last week with an amicus brief in opposition. The US Attorney for the SDNY faces an uphill battle: Two courts (the EDNY and the Southern District of Texas) have considered the government's arguments so far, and both found them completely unpersuasive. Recognizing the importance of this decision, both magistrate judges urged an appeal in order to allow a Circuit Court to rule on this pernicious practice. Nevertheless, the US Attorney’s Offices in those jurisdictions have elected not to appeal the adverse decisions. Curiously, this has not prevented the SDNY US Attorney from moving forward here. Indeed, the government’s brief reveals that US Attorney’s offices all over the country have “routinely applied for an obtained court orders [compelling] cellular telephone companies to report … cell site data, for a particular cell phone on a prospective basis.” We can only hope that the government does not intend to continue this practice in whatever districts have not yet ruled against it; the Department of Justice should either stop seeking the tracking orders or have the courage to take it up to an appeals court. But until the DOJ stops, it is great to see one magistrate after another challenging the government and putting a stop to big brother in your pocket. Posted by Kurt Opsahl at 02:53 PM | Permalink | Technorati
October 27, 2005"Oh, we secretly track cell phones without probable cause all the time! What's the big deal?"As we've reported recently, two bold new legal decisions have exposed how the Justice Department has been getting secret court orders to track people's locations using their cell phones—without probable cause and based on interpretations of the law that the newly vigilant courts are now calling "misleading," "contrived," "unsupported," a "Hail Mary" play, and even "perverse." Of course, this led us to wonder: how many times has the DOJ tricked judges into signing secret surveillance orders based on a completely bogus legal argument? The DOJ confirmed our worst fears in today's Washington Post, saying that "courts around the country have granted many such orders in the past without requiring probable cause." Now that all of those judges know just how misled they were, we'll hopefully be seeing a lot more published decisions that expose the Justice Department's overreaching surveillance practices. We've already learned from these latest decisions that they've been tracking cell phones and "wiretapping" credit card accounts using so-called "hotwatch" orders without any legal basis; maybe now we'll find out what else the government has been getting away with. Posted by Kevin Bankston at 09:58 PM | Permalink | Technorati
October 26, 2005All Writs ReduxPreviously, we wrote about the DOJ’s attempts to justify invasive surveillance with the All Writs Act, a federal law that empowers federal courts to issue any “necessary or appropriate” court order. The government was trying to convince Federal Magistrate Judge Orenstein that he could authorize the government to track someone’s location using their cell phone—without a search warrant and despite the lack of any statute allowing such surveillance. It now looks like Orenstein, who just issued a decision reaffirming his denial of the government’s request, saw the DOJ’s argument for the snake oil it was: The government thus asks me to read into the All Writs Act an empowerment of the judiciary to grant the executive branch authority to use investigative techniques either explicitly denied it by the legislative branch, or at a minimum omitted from a far-reaching and detailed statutory scheme that has received the legislature's intensive and repeated consideration. Such a broad reading of the statute invites an exercise of judicial activism that is breathtaking in its scope and fundamentally inconsistent with my understanding of the extent of my authority. (Read more after the jump.) MORE...Posted by Kurt Opsahl at 06:15 PM | Permalink | Technorati
October 20, 2005One More and it's a Movement: Another Federal Judge Says no to Cell-phone Tracking Without Probable CauseLast month, we told you about the first published court decision considering when the government can track your cell phone's location. In that case, federal magistrate judge James Orenstein in New York denied the Justice Department's request to track someone's cell phone location without probable cause. EFF filed a brief in that case, urging the Court to stand by its decision despite the government's request that it reconsider. It looks now like judicial skepticism of the DOJ's authority to track cell phones is catching. Last week, a second magistrate judge—this time in Texas—issued another decision similarly denying a Justice Department request to tap a cell phone's location. (Read more after the jump.) MORE...Posted by Kevin Bankston at 05:39 PM | Permalink | Technorati
October 12, 2005The All Surveillance Act?In the Government’s response to EFF’s amicus brief opposing the use of your cell phone to track your location, it supplies a new argument for the court’s authority to force your wireless carrier to give this information: the All Writs Act. The All Writs Act is a federal law that empowers federal courts to issue the writs (court orders) that are “necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” It’s sort of a catch-all law, allowing the court to get assistance from a third party to execute a prior order of the court, so long as the assistance required is not overly burdensome and does not violate the Constitution. We strongly dispute the Government view of the breadth and strength of the All Writs Act as a cell phone surveillance tool, especially where, as here, Congress has specifically limited the use of cell site information to track location. The U.S. Supreme Court has explained, “Where a statute specifically addresses the particular issue at hand, it is that authority, and not the All Writs Act, that is controlling.” But the most interesting part of the Government’s response is what it reveals about the DOJ’s expansive use of the All Writs Act in other cases. Without citation to any case supporting the invasive surveillance of credit cards without probable cause, the Government notes: Currently, the government routinely applies for and upon a showing of relevance to an ongoing investigation receives “hotwatch” orders issued pursuant to the All Writs Act. Such orders direct a credit card issuer to disclose to law enforcement each subsequent credit card transaction effected by a subject of investigation immediately after the issuer records that transaction. This is a revelation since these so-called “hotwatch” orders have not been previously mentioned in court cases, law review articles, or DOJ materials. While the cell phone tracking case is still ongoing, our litigation has unveiled yet another step taken towards the surveillance society. The All Writs Act should not become the All Surveillance Act. As the Supreme Court has acknowledged, the Act was only intended to be a residual authority to issue writs that are not otherwise covered by statute, but the Act does not authorize courts to issue ad hoc writs whenever compliance with statutory procedures appears inconvenient or less appropriate. It's high time for courts to scale back this pernicious use of the All Writs Act and help carve out a future in which we would want to live. Posted by Kurt Opsahl at 05:41 PM | Permalink | Technorati
|