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  • suesarkis@aol.com
    September 05, 2012 DOJ: No Privacy Rights in Cell Phone Tower Data Prosecutors in Washington are fighting back in a closely watched legal dispute over whether
    Message 1 of 1 , Sep 5, 2012
      September 05, 2012

      DOJ: No Privacy Rights in Cell Phone Tower Data

      Prosecutors in Washington are fighting back in a closely watched legal
      dispute over whether the government violated privacy rights by tracking a man's
      movement through the mobile phone calls he made.
      The man, Antoine Jones, _the nightclub owner who was at the center_
      305) of the U.S. Supreme Court ruling in January over the warrantless use
      of Global Positioning System tracking devices, wants a judge here to block
      the government from using cell phone tower information as evidence. When
      the high court struck the ability of prosecutors to use the GPS data, citing
      a violation of the Fourth Amendment, the government switched up and turned
      to cell site evidence.
      Prosecutors want to link Jones to a drug house in Maryland, connecting him
      to the house through his use of certain mobile phone towers. Government
      lawyers _said in court papers filed Tuesday_ (http://bit.ly/OkxEtb) that cell
      phone subscribers don't have a privacy expectation in the business records
      a company keeps about which towers were used to transmit a call. Those
      records are created in the normal course of business, the government said, and
      they do not, furthermore, provide the same location precision as GPS
      The FBI agents who were investigating Jones in 2005 obtained three court
      orders to obtain the cell tower information. That data, collected over a
      six-month period, shows the towers Jones' phone used to make and receive phone
      calls. The towers, prosecutors contend, do not pinpoint a precise location
      for a person who makes a mobile phone call. Government lawyers argue
      there's a far diminished privacy interest--if any at all--in the location of a
      tower compared to a dialed number or bank records.

      "The location and identity of the cell phone tower handling a customer's
      call is generated internally by the phone company and is not, therefore,
      typically known by the customer," prosecutors, including assistant U.S.
      attorneys Darlene Soltys and Courtney Spivey, said in court papers. "A customer's
      Fourth Amendment rights are not violated when the phone company reveals to
      the government its own records that were never in the possession of the
      Prosecutors said in the court papers that "no federal judge has ever
      ordered the statutory suppression of cell-site records."
      The Supreme Court in January upheld an appellate court's ruling to vacate
      Jones' life sentence. The high court found the warrantless installation of a
      GPS tracking device a violation of Jones' privacy rights. The court,
      however, did not expressly mandate that law enforcement officers must first
      obtain a warrant to secretly track a person through GPS.
      The government's position was a response to arguments made by Jones'
      lawyers and the Electronic Frontier Foundation, which _filed a brief in August
      in support of Jones_
      (http://legaltimes.typepad.com/files/eff_brief_jones.pdf) . (The Center for Democracy & Technology joined the EFF brief.)
      The amicus brief said the precision of cell tower information isn't the
      test to determine Fourth Amendment protection.
      "The test is whether the government's actions intruded upon a reasonable
      expectation of privacy," the EFF lawyers said in the brief. "Individuals have
      a reasonable expectation that the government will not use electronic
      surveillance methods to track their locations persistently over a prolonged
      period of time."
      The brief argues that there's a growing concern among federal judges that
      prosecutors should first obtain a warrant to acquire cell tower information
      from a mobile service provider. To obtain a warrant, prosecutors would have
      to provide more information about an investigation and any potential
      suspect than the government has to disclose to get a court order.
      Cell tower information, the EFF lawyers contend, is not voluntarily turned
      over by a customer to the service provider. The information is generated
      automatically "often without their intent, knowledge or control."
      Jones' trial is scheduled for January. Yesterday, he picked up a new lawyer
      after his current attorney, A. Eduardo Balarezo, asked to withdraw over a
      conflict with his client. Balarezo said last month in a court filing that
      the attorney-client relationship is "irretrievably broken," citing, among
      other things, Jones' apparent refusal to accept advice.
      Jones, who remains in custody, is now represented by Jeffrey O'Toole of
      Washington's O'Toole, Rothwell, Nassau and Steinbach.

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