Much of the mess was created by legislators and courts failing to grapple with the modern era of communications -- and also civil rights attorneys who were still back in the 1970s in their thinking. Attorneys for NSA knew this, so they were able to 'get over,' as we say in the USA. Now a great many legal minds are catching up.
From an American Civil Liberties Union press release dated June 11, 2014:
MIAMI – For the first time, a federal appeals court has ruled that law enforcement must obtain a warrant to get people’s phone location histories from their cell service companies.See the rest of the report for details on U.S. v. Davis and the ramifications of the court's decision.
“The court’s opinion is a resounding defense of the Fourth Amendment’s continuing vitality in the digital age,” said American Civil Liberties Union Staff Attorney Nathan Freed Wessler, who argued the case before the 11th Circuit Appeals Court as a friend-of-the-court in April.
“This opinion puts police on notice that when they want to enlist people’s cell phones as tracking devices, they must get a warrant from a judge based on probable cause. The court soundly repudiates the government’s argument that by merely using a cell phone, people somehow surrender their privacy rights.”
In the case, the government obtained four people's cell phone location records from their wireless carrier over a 67-day period for a robbery investigation. To get the information, the U.S. Attorney’s Office in Miami got what is known as a “D-order” from a federal magistrate judge, named for the applicable section of the federal Stored Communications Act.
However, the standard for getting a D-order is that it be “relevant and material” to an investigation, which is lower than the probable cause standard required by the Fourth Amendment. Although getting D-orders for location information has been a common law enforcement practice, the appeals court rejected it.
“There is a reasonable privacy interest in being near the home of a lover, or a dispensary of medication, or a place of worship, or a house of ill repute,” the three-judge panel wrote in a unanimous opinion.
“In short, we hold that cell site location information is within the subscriber’s reasonable expectation of privacy. The obtaining of that data without a warrant is a Fourth Amendment violation.”
The ACLU, the ACLU of Florida, Center for Democracy & Technology, Electronic Frontier Foundation, and National Association of Criminal Defense Lawyers filed an amicus brief in the case, U.S. v. Davis. A similar case, U.S. v. Graham, is currently awaiting decision in the Fourth Circuit, and the groups have filed an amicus brief in that case as well.