Obama DOJ: No Expectation of Privacy for Cell Phone Users

The FBI and other police agencies don't need to obtain a search warrant to learn the locations of Americans' cell phones, the U.S. Department of Justice told a federal appeals court in Philadelphia on Friday.

A Justice Department attorney told the Third Circuit Court of Appeals that there is no constitutional problem with obtaining records from cellular providers that can reveal the approximate locations of handheld and mobile devices. (See CNET's previous article.)

There "is no constitutional bar" to acquiring "routine business records held by a communications service provider," said Mark Eckenwiler, a senior attorney in the criminal division of the Justice Department. He added, "The government is not required to use a warrant when it uses a tracking device."

This is the first federal appeals court to address warrantless location tracking, which raises novel issues of government surveillance and whether Americans have a reasonable expectation of privacy in their--or at least their cell phones' --whereabouts.

Judge Dolores Sloviter sharply questioned Eckenwiler, saying that location data can reveal whether people "have been at a protest, or at a meeting, or at a political meeting" and that rogue governments could misuse that information. (See transcript excerpts below.)

Just a few years ago, tracking phones was the stuff of thrillers like "Enemy of the State" or "Live Free or Die Hard." Now, even though police are tapping into the locations of mobile phones thousands of times a year, the legal ground rules remain unclear, and federal privacy laws written a generation ago are ambiguous at best.

"When the government acquires historical cell location information, it effectively commandeers our cell phones and turns them into electronic trackers that report, without our knowledge or consent, where we have been and how long we have spent there," Susan Freiwald, a law professor at the University of San Francisco, told the court on Friday. "We should be able to use our cell phones without them creating a virtual map of our every movement and association."