Many of these difficult legal questions could be avoided if Congress would simply pass legislation governing this method of investigation.
Right now, all over the country, the FBI obtains sealed (secret) court orders to obtain real time cell site data under a "hybrid theory" combining the Pen/Trap Statute (law for obtaining incoming and outgoing phone numbers) and Stored Communications Act (law for obtaining stored subscriber information from ISPs). However, Pen/Trap says location data cannot be obtained through its operation and the SCA only permits disclosure of "historical" not real time information.
The result is, the FBI obtains information to track individuals under a standard well below probable cause from a magistrate judge. The orders are sealed, and because the order applications are made ex parte, their legality has never been litigated in court or given meaningful judicial review.
Magistrate Judges Stephen Wm. Smith in Texas and Orenstein in New York were the first judges to question the government's theory and deny applications. An application Smith denied in 2010 is the subject of this appeal.
Comments
Many of these difficult legal questions could be avoided if Congress would simply pass legislation governing this method of investigation.
Right now, all over the country, the FBI obtains sealed (secret) court orders to obtain real time cell site data under a "hybrid theory" combining the Pen/Trap Statute (law for obtaining incoming and outgoing phone numbers) and Stored Communications Act (law for obtaining stored subscriber information from ISPs). However, Pen/Trap says location data cannot be obtained through its operation and the SCA only permits disclosure of "historical" not real time information.
The result is, the FBI obtains information to track individuals under a standard well below probable cause from a magistrate judge. The orders are sealed, and because the order applications are made ex parte, their legality has never been litigated in court or given meaningful judicial review.
Magistrate Judges Stephen Wm. Smith in Texas and Orenstein in New York were the first judges to question the government's theory and deny applications. An application Smith denied in 2010 is the subject of this appeal.
This is Smith's Congressional testimony from 2010 which gives a good (and readable) overview of the problems in the current system: http://or.fd.org/Sady/Judge%20Smith%20testimony.pdf
And here is a law review article that deals with highly convoluted legal issues: http://www.arizonalawreview.org/pdf/53-2/53arizlrev663.pdf