Prosecutors in Washington are fighting back in a closely watched legal dispute over whether the government violated privacy rights by tracking a man's movement through the mobile phone calls he made.
The man, Antoine Jones, the nightclub owner who was at the center of the U.S. Supreme Court ruling in January over the warrantless use of Global Positioning System tracking devices, wants a judge here to block the government from using cell phone tower information as evidence. When the high court struck the ability of prosecutors to use the GPS data, citing a violation of the Fourth Amendment, the government switched up and turned to cell site evidence.
Prosecutors want to link Jones to a drug house in Maryland, connecting him to the house through his use of certain mobile phone towers. Government lawyers said in court papers filed Tuesday that cell phone subscribers don't have a privacy expectation in the business records a company keeps about which towers were used to transmit a call. Those records are created in the normal course of business, the government said, and they do not, furthermore, provide the same location precision as GPS tracking.
The FBI agents who were investigating Jones in 2005 obtained three court orders to obtain the cell tower information. That data, collected over a six-month period, shows the towers Jones' phone used to make and receive phone calls. The towers, prosecutors contend, do not pinpoint a precise location for a person who makes a mobile phone call. Government lawyers argue there's a far diminished privacy interest--if any at all--in the location of a tower compared to a dialed number or bank records.
"The location and identity of the cell phone tower handling a customer's call is generated internally by the phone company and is not, therefore, typically known by the customer," prosecutors, including assistant U.S. attorneys Darlene Soltys and Courtney Spivey, said in court papers. "A customer's Fourth Amendment rights are not violated when the phone company reveals to the government its own records that were never in the possession of the customer."
Prosecutors said in the court papers that "no federal judge has ever ordered the statutory suppression of cell-site records."
The Supreme Court in January upheld an appellate court's ruling to vacate Jones' life sentence. The high court found the warrantless installation of a GPS tracking device a violation of Jones' privacy rights. The court, however, did not expressly mandate that law enforcement officers must first obtain a warrant to secretly track a person through GPS.
The government's position was a response to arguments made by Jones' lawyers and the Electronic Frontier Foundation, which filed a brief in August in support of Jones. (The Center for Democracy & Technology joined the EFF brief.)
The amicus brief said the precision of cell tower information isn't the test to determine Fourth Amendment protection.
"The test is whether the government's actions intruded upon a reasonable expectation of privacy," the EFF lawyers said in the brief. "Individuals have a reasonable expectation that the government will not use electronic surveillance methods to track their locations persistently over a prolonged period of time."
The brief argues that there's a growing concern among federal judges that prosecutors should first obtain a warrant to acquire cell tower information from a mobile service provider. To obtain a warrant, prosecutors would have to provide more information about an investigation and any potential suspect than the government has to disclose to get a court order.
Cell tower information, the EFF lawyers contend, is not voluntarily turned over by a customer to the service provider. The information is generated automatically "often without their intent, knowledge or control."
Jones' trial is scheduled for January. Yesterday, he picked up a new lawyer after his current attorney, A. Eduardo Balarezo, asked to withdraw over a conflict with his client. Balarezo said last month in a court filing that the attorney-client relationship is "irretrievably broken," citing, among other things, Jones' apparent refusal to accept advice.
Jones, who remains in custody, is now represented by Jeffrey O'Toole of Washington's O'Toole, Rothwell, Nassau and Steinbach.