Today the U.S. Supreme Court denied cert in the Sprint v. County of San Diego and Level 3 v. St. Louis cases.

For local governments and telecom carriers in the 9th Circuit, this means that telecom carriers who want to challenge a zoning decision will in most ever case have to show that the local ordinance, AS APPLIED, acts as a prohibition to the provision of a telecom service.

Under the old, now overruled standard, a telecom carrier needed only to show that a local ordinance could prevent a provider from providing a telecom service (the so-called ‘facial attack’).

Tom Bunton, Esq., of the County Counsel’s office in San Diego is a hero to local governments.

Jonathan

Should cell phone tower data be made available to law enforcement without a warrant?  That what the US Department of Justice (DOJ) would like to see.

In an appeal filed in the U.S. Court of Appeals, Third Circuit, the DOJ says it should have the the authority to compel wireless carriers to provide cell phone switch data that is historical in nature, and without the need to first obtain a warrant.

The argument posed by the DOJ is that historical records of cell phone use and towers used by a subscriber is not akin to a pen register or trap-and-trace devices, thus no warrant should be needed.

The problem for the DOJ is that cell phone records, and specifically records of what towers were used, amount to location data, and telephone number data (as would be disclosed by a pen register).  It’s hard to understand why the DOJ thinks that the same data that would require a warrant where it in connection with a landline phone would not need a warrant if in connection with a mobile phone.  The DOJ rests its argument as follows:

Under the longstanding canon of expressio unius est exclusio alterius (“the expression of one is the exclusion of the other”), a court should presume that if “Congress wanted to include such a requirement … it knew exactly how to do so.”

This, of course, is silly since it presumes that Congress knows all technology now in existence, and what will come into existence in the unforeseeable future.  It is essentially a loop-hole way into saying that what Congress didn’t know is what it intended to omit.  Yeah, right.

For an example of how the police use cell phone tower data to assert that someone is somewhere when something is happening, look at the following excerpt from the Affidavit for an Arrest Warrant for one Donna Moonda, which is found on the US DOJ website:

With the assistance of the cellular telephone companies involved, investigators were able to map out Damian Bradford’s travel on May 13, 2005, by accessing cell tower locations  where the calls were routed. It has been confirmed that Damian Bradford was the individual utilizing the cell phone through numerous interviews with individuals who either called Bradford or received a call from him. In the early afternoon hours of May 13, 2005, that information showed Bradford moving North and Donna Moonda traveling South in Pennsylvania to a meeting location mid-way between their residences. Shortly thereafter, Donna Moonda traveled back to Hermitage and Bradford traveled back to the Aliquippa area, north of Pittsburgh, Pennsylvania. In mid-afternoon, Bradford traveled North until he eventually reached Hermitage, Pennsylvania, between 3-4 p.m. At approximately 4:30 p.m. the Moondas, along with Donna Moonda’s mother, Dorothy Smouse, left Hermitage, Pennsylvania and traveled on the Ohio Turnpike on a planned trip to Toledo, Ohio. Cell site information, along with time/distance calculations, showed Damian Bradford moving in sync with the Moondas from Pennsylvania to the Ohio Turnpike.

In the end, what the DOJ wants is a judge-made exception of the 4th Amendment.  That Amendment prohibits warrantless searches, which is exactly what the DOJ wants in connection with cell phone records.