US Supreme Court: ‘Let’s Call a Friend’

At its conference on March 20th, the U.S. Supreme Court considered whether to grant certiorari (the so-called “Rule of 4”) in two key cases dealing with the Telecom Act, and specifically with the interplay between Section 253 and Section 332(c).

These cases, Level 3 v. St. Louis and Sprint v. County of San Diego, address local government controls and the reach of telecom ordinances.  St. Louis deals with wireline issues, while San Diego deals with wireless issues.

Rather then deciding to grant or deny cert in these two cases, the Justices have asked the new United States Solicitor General, Elena Kagan to file a brief containing the views of the United States on these two cases.  Call it a “Who Wants to be a Millionaire” ‘Call-a-Friend lifeline’ or a “Cash Cab” ‘Street Shout-Out.’

Sometimes called the 10th Supreme Court Justice, the Solicitor General is occationally ‘invited’ to weigh in like now on certain cases brought before the nation’s highest court.

I expect that it will be at least several months before the Solictor General gets through all of the industry and governments briefs and letters designed to suggest how she should advise the Supremes, and writes her brief.



DOJ: 4th Amendment Should Not Apply to Cell Phone Records

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.


Traffic, Talking, and Early Termination

Several recent articles have appeared linking cell phone usage while driving (or merely walking on the streets) to a higher rate of traffic-related deaths.

In an article titled, “Danger of Cell Phone Use: While Walking Or Driving, Cell Phones Increase Traffic, Pedestrian Fatalities” published in Science Daily on March 8, 2009, several new studies about traffic deaths related to cell phone use are reviewed.

The “life-saving effect” occurred as the volume of phones grew into the early 1990s, and increasing numbers of cells were used to call 911 following accidents, leading to a drop in fatalities, explains Loeb. But this life-saving effect was canceled out once the numbers of phones reached a “critical mass” of  about 100 million and the “life-taking effect” – increased accidents and fatalities — outweighed the benefits of quick access to 911 services, according to [Rutgers University, Newark, Economics Professor Peter D. ] Loeb.

Here is a link to the AAA Foundation’s December 2008 report.

Sobering stuff!  It’s the ultimate early termination fee.


T-Mobile Gunning for MetroPCS and Cricket?

t-mobile_logoIn what seems like a frontal assult on MetroPCS and Cricket, T-Mobile has quietly rolled-out a customer loyalty program: If you’ve been with T-Mobile for at least 22 months, you can signup for a $50/month nationwide voice service.

This type of pricing would be an interesting run on MetroPCS and Cricket, which offer all-you-can-eat fixed pricing, but with limited service areas (go outside and you pay hefty roaming fees on those two networks).

No, the T-Mobile program doesn’t offer data (you can get that for another $35/month), but if you’re a traveler and do nt use da ph 4 txting then it’s a good deal.