Utilizing different communications acts, legal authorities are tracking cell phone users with warrants issued without meeting the legal standard of ‘probable cause’, according to Ellen Nakashima of WaPo:

Federal officials are routinely asking courts to order cellphone companies to furnish real-time tracking data so they can pinpoint the whereabouts of drug traffickers, fugitives and other criminal suspects, according to judges and industry lawyers.

In some cases, judges have granted the requests without requiring the government to demonstrate that there is probable cause to believe that a crime is taking place or that the inquiry will yield evidence of a crime. Privacy advocates fear such a practice may expose average Americans to a new level of government scrutiny of their daily lives.

Such requests run counter to the Justice Department’s internal recommendation that federal prosecutors seek warrants based on probable cause to obtain precise location data in private areas. The requests and orders are sealed at the government’s request, so it is difficult to know how often the orders are issued or denied.

Part of the problem is the standards required by different judges, which is important if you realize conservative Republicans have, by far, appointed most of the federal judges deciding these things.

Instead of seeking warrants based on probable cause, some federal prosecutors are applying for orders based on a standard lower than probable cause derived from two statutes: the Stored Communications Act and the Pen Register Statute, according to judges and industry lawyers. The orders are typically issued by magistrate judges in U.S. district courts, who often handle applications for search warrants.

In one case last month in a southwestern state, an FBI agent obtained precise location data with a court order based on the lower standard, citing “specific and articulable facts” showing reasonable grounds to believe the data are “relevant to an ongoing criminal investigation,” said Al Gidari, a partner at Perkins Coie in Seattle, who reviews data requests for carriers.

Another magistrate judge, who has denied about a dozen such requests in the past six months, said some agents attach affidavits to their applications that merely assert that the evidence offered is “consistent with the probable cause standard” of Rule 41 of the Federal Rules of Criminal Procedure. Tmhe judge spoke on condition of anonymity because of the sensitivity of the issue.

In other words, they claim it meets the probable cause standard but aren’t filing actual evidence to support that claim.

They can often track a user to within 30 feet of their actual location. Which might seem useful to catch terrorists, except that terrorists are avoiding cell phone use because of that tracking capability. Disposable cellphones, bought anonymously, also can help skirt that capability.

“Law enforcement has absolutely no interest in tracking the locations of law-abiding citizens. None whatsoever,” (Justice Department spokesnan) Boyd said. “What we’re doing is going through the courts to lawfully obtain data that will help us locate criminal targets, sometimes in cases where lives are literally hanging in the balance, such as a child abduction or serial murderer on the loose.”

Perhaps. And how can Boyd know if this is true or not?

Since 2005, federal magistrate judges in at least 17 cases have denied federal requests for the less-precise cellphone tracking data absent a demonstration of probable cause that a crime is being committed. Some went out of their way to issue published opinions in these otherwise sealed cases.
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“Permitting surreptitious conversion of a cellphone into a tracking device without probable cause raises serious Fourth Amendment concerns especially when the phone is in a house or other place where privacy is reasonably expected,” said Judge Stephen William Smith of the Southern District of Texas, whose 2005 opinion on the matter was among the first published.

But judges in a majority of districts have ruled otherwise on this issue, Boyd said.

Sounds like Boyd’s saying prosecutors aren’t interested in tracking the law abiding while trumpeting that judges are too willing to provide data at the lower standard. And that’s reassuring how?

The trend’s secrecy is troubling, privacy advocates said.

No government body tracks the number of cellphone location orders sought or obtained. Congressional oversight in this area is lacking, they said. And precise location data will be easier to get if the Federal Communication Commission adopts a Justice Department proposal to make the most detailed GPS data available automatically.

Often, Gidari said, federal agents tell a carrier they need real-time tracking data in an emergency but fail to follow up with the required court approval. Justice Department officials said to the best of their knowledge, agents are obtaining court approval unless the carriers provide the data voluntarily.

To guard against abuse, Congress should require comprehensive reporting to the court and to Congress about how and how often the emergency authority is used, said John Morris, senior counsel for the Center for Democracy and Technology.

Got that? Some carriers are providing the data voluntarily, so law enforcement doesn’t even need o get court approval in that case.

If you find it reassuring that one spokesman claims no prosecutor in the nation is interested in pursuing info on law abiders, remember that people other than prosecutors can fill out the paperwork. And with cell phone carriers providng the information voluntarily without the court documents, the privacy of law abiders is already compromised and wide open to be abused.