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Posted 1:00 AM Eastern
by David Bresnahan
January 3, 2006

Summary: Despite three court rulings that cell phone tracking by government agencies without a court order is illegal, a fourth court ruling has now authorized blanket spying. The government can now use cell phone data to track physical location, without a search warrant or probable cause.

NEW YORK -- A federal court issued an opinion permitting government agencies to use cell phone data to track a cell phone's physical location, without a search warrant based on probable cause.

The ruling seems to be in line with recent revelations about President Bush authorizing secret, warrantless wiretaps. The court opinion on Dec. 20, 2005 went largely unnoticed by the media or the public, but may have major ramifications on privacy rights and issues.

Magistrate Judge Gabriel W. Gorenstein of the United States District Court, Southern District of New York issued the opinion, despite three previous rulings to the contrary by other judges. There is no party to appeal, so the ruling paves the way for government agencies in all states to begin cell phone tracking without legal difficulty.

There was only one party in each case that was rejected by other courts, the same party in the case that was given approval -- the Department of Justice. The DOJ did not appeal the cases it lost, and there is no party to appeal the case it won.

"What other new surveillance powers has the government been creating out of whole cloth and how long have they been getting away with it?" commented the non-profit Electronic Frontier Foundation on it's web site.

The DOJ revealed an attitude that a court order is not needed in the brief submitted by Assistant U.S. Attorney Thomas Brown: "A cell phone user voluntarily transmits a signal to the cell phone company, and thereby 'assumes the risk' that the cell phone provider will reveal to law enforcement the cell-site information."

When the issue comes up in other courts there will be no case of appeal for judges to review for guidance, creating the more likely situation that each subsequent case will be easier and easier for the DOJ and other government agencies to win, say legal analysts commenting in various blogs.

Legitimate needs for tracking have been used by commercial vendors and government agencies to justify monitoring of all consumers with a cell phone. The checks and balances put in place to protect individual privacy, such as court orders, are in jeopardy by blanket use of tracking systems that have no accountability, according to government watchdog groups and privacy advocates.

National Engineering Technology Corporation (NET) is actively negotiating with various state department of transportation agencies to track cell phone users, without their permission. The data will be used to study traffic flow and provide information to various systems and third parties to notify drivers of ways to avoid traffic congestion.

News stories tell of car thieves captured because a toll transponder, or other Global Positioning System (GPS) device in a car used to identified their location. Web sites already exist that enable the public the ability to track the location of cell phones. These sites advertise services to do things such as know the location of a teenager, or find a lost child.

The present traffic systems do not capture the personal information available from each cell phone, but opponents of cell phone tracking express concerns about the potential for that information to easily be included with the simple click of a computer mouse.

The DOJ was previously turned down by other judges in New York, Long Island, and Texas.

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Each time the DOJ included a request to capture the dialing information of incoming and outgoing calls, as well as physical location of each phone.

The previous judges rejected the requests stating that investigators cannot track cell phones without going through the hoops necessary for getting a traditional search warrant.

The DOJ did not respond to requests for comments.

Part 2:
"Government Tracking Cell Phones Without Court Orders"

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David M. Bresnahan has over 30 years of experience as an award-winning journalist, broadcaster, radio station owner, talk show host, and business owner. David has been a prominent writer for many Internet newspapers.

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There is no party to appeal, so the ruling paves the way for government agencies in all states to begin cell phone tracking without legal difficulty.