Earlier this week a federal judge in Brooklyn ruled probable cause must exist and a warrant must be issued before it will be possible to access cell phone records that would show the location of a customer 24-hours a day. In the Matter of an Application of the United States of America for an Order Authorizing the Release of Historical Cell-Site Information, the Eastern District Judge Nicholas G. Garaufis said the same Fourth Amendment protections that apply to unreasonable searches with pay phones, extend to cell phones as well.

The individual for whom the U.S. attorney sought the records had been indicted for a crime and had violated the terms of his release. The authorities were concerned the man had left the United States, using another person’s name. This was the second time the government sought to gain the records. It was denied the first time as well when an identical application was submitted to Magistrate Judge Orenstein.

The key point in Eastern District Judge Nicholas G. Garaufis’ ruling is the scope of the records sought. In this case the Eastern District U.S. Attorney’s Office was seeking the cell-site-location information from Verizon wireless, for one customer, for a 113 day time period. The records were sought under the Stored Communications Act, 18 U.S.C. §§2703(c)(1)(d). While in the past this same judge has approved applications seeking cell-site-location information, he pointed out that they were all for shorter time periods.

Citing United States v. Maynard, 615 F.3d at 555-68, the reason applied was that people have an expectation of privacy over a longer period of time than they do on short trips over a short amount of time. According to Maynard, monitoring a person using an electronic monitoring device for a long period of time constituted a Fourth Amendment search.

The government was also unable to gain access to the records under the third-party-disclosure doctrine. In his denial, Judge Garaufis wrote, “cell-phone users have a reasonable expectation of privacy in cumulative cell-site-location records, despite the fact that those records are collected and stored by a third party.”

Source: New York Law Journal, “Ruling Raises the Bar to Access Long-Term Cell Phone Records,” Joel Stashenko, Aug. 23, 2011