Government Access to Cell Phone Records

There is an August 22, 2011 decision from the U.S. District Court, Eastern District, in the Matter of Historical Cell-Site Information, 10-MC-897 (NGG), NYLJ 1202511989637 that Slaw readers may find interesting. The U.S. Attorney’s office wanted 113 days of cell phone records from Verizon Wireless. The court said:

While the government’s monitoring of our thoughts may be the archetypical Orwellian intrusion, the government’s surveillance of our movements over a considerable time period through new technologies, such as the collection of cell-site-location records, without the protections of the Fourth Amendment, puts our country far closer to Oceania than our Constitution permits. It is time that the courts begin to address whether revolutionary changes in technology require changes to existing Fourth Amendment doctrine. Here, the court concludes only that existing Fourth Amendment doctrine must be interpreted so as to afford constitutional protection to the cumulative cell-site-location records requested here. For the foregoing reasons the Government’s motion for orders pursuant to 18 U.S.C. §2703(c)(1) and (d) is DENIED.

The New York Law Journal has a good summary of the case (Registration may be required). Title 18 of the U.S. Code at § 2703 contains provisions for required disclosure of customer communications or records. The U.S. law speaks generally enough to include a variety of communication methods.

Our legislation in Canada has not kept up with existing technologies, despite attempts at amendments. Back in 2005, the government was consulting stakeholders about lawful access legislation. The privacy commissioners in Canada outlined their concerns in a letter to Public Safety Canada from March 2011. The Investigative Powers for the 21st Century Act keeps dying on the order paper (Background of the Act from the Justice Canada).

Various aspects of lawful access and cell phone tracking have been discussed here at Slaw by David Canton, Simon Fodden, John Gregory, and David Fraser.

Faced with a request for cell phone tracking data, what would a Canadian Court say today?

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