Judge Declares Law Governing Warrantless Cellphone Tracking Unconstitutional

In a succinct one-page ruling, U.S. District Court Judge Lynn N. Hughes of the Southern District of Texas declared that the law authorizing the government to obtain cellphone records without a search warrant was unconstitutional. “The records would show the date, time, called number, and location of the telephone when the call was made,” Judge Hughes wrote in the decision, dated Nov. 11. “These data are constitutionally protected from this intrusion.”

Judge Hughes’ decision comes as the U.S. government is facing increasing judicial challenges to its practice of obtaining information about the location of individuals without a search warrant. Last week, the Supreme Court heard oral arguments in a case where the government placed a GPS tracking device under a vehicle and monitored the driver’s movements for a month without a search warrant. During the argument, Chief Justice John Roberts said to Michael Dreeben, deputy solicitor general of the Justice Department: “If you win this case then there is nothing to prevent the police or the government from monitoring 24 hours a day the public movement of every citizen of the United States.” The Justice Department argues that people have no expectation of privacy on public roads. Cellphone records are governed by the Electronic Communications Privacy Act, a 1986 law that permits law enforcement officers to obtain certain digital records – such as some e-mail and cellphone records – without a search warrant. A coalition of technology companies—including Google Inc., Microsoft Corp. and AT&T Corp.—is lobbying Congress to update the law to require search warrants in more digital investigations.