News reports emerged this week that some judges are issuing sealed orders in response to secret government requests that ask cell phone providers to provide real-time tracking information about their customers absent a showing of probable cause that a crime is taking place or that the inquiry will reveal evidence of a crime.
Even when not in use, cell phones can be tracked, and the federally mandated "enhanced 911" location tracking system can locate a phone to within 30 feet. Privacy advocates caution tracking data will be even easier to obtain if the FCC adopts a DOJ proposal to make yet more detailed GPS data automatically available.
Some prosecutors have applied for tracking orders under the relatively low standard of "specific and articulable facts," under the Stored Communications Act and the Pen Register Statute. At least 17 requests for data have been denied by federal magistrate judges since 2005, although most judges hearing the issue have held otherwise, with some reasoning that because the government did not install the tracking device, and the user voluntary chose to carry it, no warrant was required.
A magistrate judge who has denied about a dozen requests told the Post that some federal agents attach an affidavit to their request asserting that the evidence is consistent with the probable cause standard, but do not provide any underlying facts.
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