Aug 302010
 August 30, 2010  Posted by  Court, Featured News, Surveillance, U.S.

Chris Soghoian has uploaded a federal magistrate’s decision in Eastern District New York denying the federal government’s request for an order requiring Sprint Nextel to produce cell records, including tower and sector information for a subscriber’s phone. According to court documents, the Sprint subscriber was Edwin Espinosa, but the phone was allegedly being used by the target of a criminal investigation, Tyshawn Augustus.

The government asserted that the request was relevant to a criminal investigation and that it believed it had sufficient grounds for obtaining a warrant under the probable cause standard. But the government did not apply for, nor obtain a warrant, preferring, it said, to proceed under the Stored Communications Act (SCA). It has been the government’s position that the SCA permits them to obtain records without a warrant.

Magistrate James Orenstein disagreed and denied the requested order, holding that the Fourth Amendment requires a warrant to obtain these types of records and that the government’s assertion that they had sufficient evidence to reach the probable cause standard was not sufficient. The judge wrote:

Even assuming that the facts proffered in the revised Application sufficed to establish probable cause, those facts could not simply be proffered but would instead have to be established by means of an affidavit or affirmation.

There’s much more to the opinion, but if the government hoped to get a ruling to support its approach that it does not need a warrant to search historical cell phone records with location data, it met its match in Judge Orenstein.

Update: Mariko Hirose of the ACLU blogs about the decision, here.

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