STE WILLIAMS

A federal judge has ruled that subscriber data captured from cellphone towers is protected by the US Constitution’s Fourth Amendment guarantee against illegal searches and seizures.

The decision is part of a sea change from half a decade worth of previous rulings, in which police weren’t required to obtain search warrants based on probable cause before accessing the subscriber information. US Magistrate Judge Stephen Wm Smith of the Southern District of Texas said recent changes in case law and rapidly evolving mobile technology required a departure from the outcomes in that long line of cases.

The ruling – which seemed to make reference to the year the Constitution went into effect and the George Orwell novel – is a huge victory for privacy advocates, who have long argued that historical cell-site information gives the government the ability to track users’ location each time they make a call or send a text message. In this case, however, it would appear the government was seeking to electronically surveil targets “whether the phone was in active use or not,” Smith said.

The government’s request for permission to capture 60 days worth of tower data didn’t sit well with the judge, who likened the electronic record to “a continuous reality TV show, exposing two months’ worth of a person’s movements, activities, and associations in relentless detail.”

The decision follows August’s landmark decision in which a federal appeals court bashed warrantless GPS surveillance, ruling FBI agents should have obtained a search warrant before planting a GPS device on the vehicle of a suspected drug dealer. A few weeks later, a federal judge in New York ruled cell-tower data was also protected by the Fourth Amendment, rebuffing investigators who said there was no reasonable expectation such data is private.

The American Civil Liberties Union, hailed Smith’s decision.

“The court reached this conclusion both because cell tracking reveals information about constitutionally protected spaces such as the home, and because the prolonged nature of such surveillance is very invasive,” Catherine Crump, of the ACLU’s Speech, Privacy and Technology Project, blogged.

A PDF of Smith’s ruling is here ®

California’s high court said police don’t need a warrant to read text messages stored on the cell phones of people taken into custody.

Monday’s 5-2 decision (PDF) relied on separate decisions from the 1970s by the US Supreme Court that upheld warrantless searches of cigarette packs and clothing taken from suspects after they were arrested.

The ruling came in the case of Gregory Diaz, who was arrested in 2007 for conspiracy to sell Ecstasy. Officers who confiscated his phone found a message that read “6 4 $80,” which was interpreted to mean the defendant would sell six pills for $80.

In a dissenting opinion, two associate justices said cell phones should be treated differently than other personal effects confiscated from a suspect because they’re capable of storing so much more information.

“A contemporary smartphone can hold hundreds or thousands of messages, photographs, videos, maps, contacts, financial records, memoranda and other documents, as well as records of the user‟s telephone calls and Web browsing,” Kathryn M. Werdegar wrote in the dissent. “Never before has it been possible to carry so much personal or business information in one’s pocket or purse. The potential impairment to privacy if arrestees’ mobile phones and handheld computers are treated like clothing or cigarette packages, fully searchable without probable cause or a warrant, is correspondingly great.”

The warrantless seizure of cell phones has already been heard by other courts with varying outcomes, according to The San Francisco Chronicle. The split may prompt the US Supreme Court to take up the issue. ®