Susan Freiwald writes:
A congressional inquiry, which recently revealed that cell phone carriers disclose a huge amount of subscriber information to the government, has increased the concern that Big Brother tracks our cell phones. The New York Times reported that, in 2011, carriers responded to 1.3 million law enforcement demands for cell phone subscriber information, including text messages and location information. Because each request can acquire information on multiple people, law enforcement agencies have clearly obtained such information about many more of us than could possibly be worthy of suspicion. Representative Markey, who spearheaded the inquiry, has followed up with a thorough letter to Attorney General Holder that asks how the Justice Department could possibly protect privacy and civil liberties while acquiring such a massive amount of information.
Among many important questions, Representative Markey’s letter asks whether the DOJ continues to legally differentiate between historical (those produced from carrier records) and real-time (those produced after an order is issued) cell site location information and what legal standard the DOJ meets for each (or both). Traditionally, courts have accorded less protection to historical location data, which I have criticized as a matter of Fourth Amendment law in my amicus briefs and in my scholarship. The government’s applications for historical data in the Fifth Circuit case, which is currently considering whether agents seeking historical location data must obtain a warrant, provide additional evidence that the distinction between real-time and historical location data makes no sense.
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