Friday, November 18, 2011

Law Allowing Police To Obtain Cell Phone Records Without Warrant Ruled Unconstitutional

In the face of increasing legal challenges to the government's power to obtain information, a Texas District Court Judge struck down a Federal law which gives authorities the right to obtain cell phone records without a warrant.  The Electronics Communications Privacy Act of 1996 allows authorities to obtain certain digital records, such as emails and cell phone records, without a warrant so long as the police are able to show specific and articulable facts that the records sought are relevant and material to an ongoing investigation.  When it comes to searching a person's home, the police generally have to obtain a search warrant which requires that they show a judge that probable cause exists that a crime has, or is being committed.  Some large technology companies, such as Microsoft and Google have been lobbying Congress to change the law to require more than what the Electronics Communications Privacy Act of 1996 allows.  Meanwhile, lower courts have been struggling with the issue releasing conflicting rulings.  Yesterday, U.S. District Court Judge Lynn N. Hughes of the Southern District of Texas issued a one page ruling which struck down the Electronics Communications Privacy Act of 1996.  In her opinion, Judge Hughes held that 'when the government requests records from cellular services, data disclosing the location of the telephone at the time of particular calls may be acquired only by a warrant issued on probable cause."  She concluded her opinion by stating that "the standard under the [existing law] is below that required by the Constitution."  This case comes in the heals of last week's Supreme Court's oral arguments on a case involving whether the police need to obtain a search warrant to place a GPS tracking device on a defendant's vehicle.  During last week's Supreme Court oral arguments, several justices, both liberal and conservative, expressed concern over the government's contention that a search warrant is not required to place a GPS tracking device on a suspect's vehicle.  This line of challenges to the government's authority will go on for many years as the law tries to establish boundaries on the limits of the government's authority over new and innovative technologies that were not present when the Constitution was written.

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1 comment:

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