Jaikumar Vijayan reports on oral argument in the Fifth Circuit Court of Appeals yesterday:
Individuals have no reasonable expectation of privacy in historical cell phone location data collected and maintained by phone companies, a federal prosecutor said in oral arguments Monday before a three-judge panel from the Fifth Circuit Court of Appeals in New Orleans.
In arguments Monday before the Fifth Circuit, federal prosecutor Nathan Judish reiterated the government’s position that the Fourth Amendment allows the U.S. government to obtain a 2703(d) order to force a cell phone company to divulge customer records.
The SCA explicitly allows the government to seek such information without a warrant so long as it can clearly show that the information is relevant to a criminal investigation, he said.
Judish maintained that the information being sought by the government was collected and maintained totally at the discretion of the two phone companies. Neither company had any legal mandate to maintain those records, he said.
Judish characterized the information being sought as business records maintained by a third party and collected as part of doing business. Customers can have no reasonable privacy expectation over such data because the data is part of a third-party’s business records, he said.
Hanni Fakhoury, a staff attorney for the Electronic Frontier Foundation (EFF), which has filed an amicus brief in the case, rejected the government’s arguments.
“Technology is changing in a way that makes cell-site information a lot more precise and accurate,” said Fakhoury who presented the EFFs arguments before the Fifth Circuit judges on Tuesday. The kind of records being sought by prosecutors in the case will help them get an extremely detailed picture of the whereabouts of the targeted individuals over a 60-day period.