A U.S. District Court Judge has sided with compelling constitutional law arguments made by USF Law Professor Susan Freiwald and the Magistrate Judge in the decision below. In a single-page Order on Objections, Judge Lynn Hughes of the Southern District of Texas noted Professor Freiwald's amicus brief, along with a brief submitted by the EFF and ACLU, as an aid in arriving at his decision.
This most recent action arises out of an opinion by Magistrate Judge Stephen Smith of U.S. District Court in the Southern District of Texas. He denied the government access to a cellphone subscriber’s data absent a search warrant. Judge Smith's decision noted that cellphone tracking could allow the government to compile a "digital dossier" tracking a cellphone users movements and activities. To read the full decision click here.
The present Order is in response to the government's appeal of Judge Smith's decision. In her amicus brief Professor Freiwald urged the court to treat such records as deserving the full protection of the 4th Amendment of the U.S. Constitution. Such protected records could only be released to investigators who have received a warrant issued on probable cause. As the court put it, cell phone location records "... would show the date, time, called number, and location of the telephone when the call was made. These data are constitutionally protected from intrusion."
This decision is sure to generate discussion, starting with an entry in a Wall Street Journal blog: Judge Declares Law Governing Warrantless Cellphone Tracking Unconstitutional