Dec 152010
 December 15, 2010  Posted by  Court, Featured News, Surveillance

Kevin Bankston shares the great news:

In EFF’s second major privacy victory in as many days, the Third Circuit Court of Appeals todaydenied the government’s request that it reconsider its September decision regarding government access to cell phone company records that reveal your past locations. That means the court’s original opinion — holding that federal magistrates have the discretion to require the government to get a search warrant based on probable cause before obtaining cell phone location records — is now the settled law of the Third Circuit, assuming the government doesn’t seek review by the Supreme Court. Importantly, this victory won’t just provide greater protection for the privacy of your cell phone records but for all other communications records that the government currently obtains without warrants.


This victory is particularly gratifying because the Third Circuit’s decision has implications far beyond cell phone location privacy. The main holding of the case was a general ruling about the federal Stored Communications Act (“SCA”), the portion of the Electronic Communications Privacy Act of 1986 that regulates communications providers disclosure of communications content and records. That statute is regularly used by the government to secretly obtain a broad range of content and records, not just cell phone location records, based not a probable cause warrant but on a much easier to obtain court order that doesn’t require probable cause (often called a “D Order” since they are authorized in subsection (d) of section 2703 of the SCA). For example, the government routinely obtains email content using D orders instead of warrants (you may remember we joined with Yahoo! to beat back such a request just this summer).

The key holding in this case affects the basic operation of the SCA for D Orders. What the Third Circuit held was that, when the government applies for a D Order, the judge has the discretion to deny that application and instead require a warrant in order to avoid potential Fourth Amendment problems. This is an incredibly powerful pro-privacy ruling, especially compared to the government’s position that courts must grant D orders when the government meets the minimal, non-probable cause factual showing that the statute requires. The Third Circuit has clarified that judges can deny D Order applications — for cell phone records, for emails, or anything else — so long as they have reason to believe that the order might violate the Fourth Amendment.

Read more on EFF.

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