WASHINGTON-A federal judge in New York has ruled that law enforcement may not track someone without probable cause, according to News.com by CNET.
Burton Ryan, an assistant U.S. attorney, had tried to obtain a “pen register” tap that would track constantly a target whenever his cell phone was in use. U.S. Magistrate Judge James Orenstein said no. To require that type of information, Ryan must apply for a wiretap, which requires probable cause.
“I don’t know anything about the specific case, but it is true that location information only attaches to a court order obtained with probable cause,” said Les Szwajkowski, a former FBI agent now with Raytheon Corp. “This is exactly the role magistrates are supposed to play. They are not rubber stamps.”
The rules implementing the Communications Assistance for Law Enforcement Act said that law enforcement was entitled to pen register information from a cell-phone conversation at the beginning and end of the call. This information would make it similar to a pen register in the wired world, which gives the date, time and number called. Because the location is fixed in the wired world, the location is known.
According to CNET, Orenstein said that more definitive rules need to be established.
“My research on this question has failed to reveal any federal case law directly on point. Moreover, it is my understanding based on anecdotal information that magistrate judges in other jurisdictions are being confronted with the same issue but have not yet achieved consensus on how to resolve it. If the government intends to continue seeking authority to obtain cell-site location information in aid of its criminal investigations, I urge it to seek appropriate review of this order so that magistrate judges will have more authoritative guidance in determining whether controlling law permits such relief on the basis of the relaxed standards set forth (under federal law), or instead requires adherence to the more exacting standard of probable cause,” wrote Orenstein.
