February 12, Philadelphia, PA
If you're a cellular-phone user, can you expect your records - when and where calls are made and received - to be private? If police want access to your data because they believe a crime has been committed, how much evidence should they have to produce? Should a search warrant be required?I have a host of friends, some of them are even lawyers and they call themselves American no less, who always respond to these questions with if you've done nothing wrong, you've got nothing to hide. Looks like Big Brother is Back and Bigger than ever.
Those critical questions were argued today in the U.S. Court of Appeals for the the Third Circuit in Philadelphia in a closely watched drug-trafficking case with broad implications for the emerging law of digital privacy.
The hearing centered on a 2008 ruling by a Pittsburgh magistrate judge who denied a request by federal law-enforcement agents for the cell-phone records of a person under investigation - information showing the location of towers used to connect his calls and the times.
The agents contended they were entitled to the records without a search warrant, that the federal statute required only a showing of "reasonable suspicion" of a crime. The judge ruled a warrant was needed. The U.S. Justice Department appealed.
In its appellate brief, the Justice Department said getting the cell data was imperative "because the subject and his confederates use a variety of vehicles and properties to conduct their illegal activities," and "physical surveillance has proven difficult."
Nonetheless, Judge Dolores Sloviter saw a problem. She said that cell-site location data, obtained without a court's review, could be used by an unscrupulous government to track dissidents.
"As I work on this, I listen to the news," she said, "and there are governments . . . like Iran, that might want to know whether its people have been at a protest. . . . Don't we have to be concerned about that?"