D.C. Judge: Government Doesn't Need a Warrant to Demand Cell Phone Location Information
These days, most people carry a cell phone with them everywhere they go: to work, to church, on vacation, and more. And cell phone carriers may capture and retain records of your location even when you’re not using your phone. Does that mean that the government can simply demand these records from your carrier without a warrant? Unfortunately, according to Judge Royce Lamberth of the D.C. District Court,
Judge Lamberth [pdf] that a "reasonable cellular phone customer presumably realizes that his calls are all transmitted by nearby cell-site towers, and that cellular phone companies have access to and likely store data regarding the cell-site towers used to place a customer's calls," and a person's "decision to place a cellular phone call and thus provide information regarding his location to the phone company thus defeats an individual's privacy interest in that information." But both of these assertions are flawed. People (including some members of Congress) were taken by surprise earlier this year when researchers announced that the . And using a cell phone, even if you know that the phone company has access to your location, shouldn’t mean that the government has a right to access this sensitive information about who you are and where you go without going to a judge and getting a warrant. That’s especially true when your carrier knows where you phone is any time it’s turned on (even if you’re not actively using it) and retains this information for longer than you might expect.
Unfortunately, we know that law enforcement is taking advantage of outdated privacy protections to demand your location history from your cell carrier without a warrant. What we don’t know is how often this happens — yet. But we’re engaged in a nationwide campaign to demand information about this practice so we can understand how and why law enforcement officials in various states are demanding Americans’ location histories — and whether they are getting a warrant first. (Want to know what’s happening in your state? Find out here!)
Courts are struggling to come up with clear rules about how our personal information is protected by law, which is why the Supreme Court will be addressing the issue of location privacy this term. But while we hope the Court will set things right, we need to take steps to ensure that our private information — our location history, our email, our search records, and more — has the protection it deserves. Unfortunately, the federal law that should protect this information, the Electronic Communications Privacy Act (ECPA), was passed back in the digital dark age of 1986. So it doesn’t provide the protection for location information or the other digital footprints that we leave behind when we use modern technology.
ECPA is marking its 25th birthday next week, but unfortunately it hasn’t really grown up at all since then. So please join us in telling Congress that it’s time to update ECPA and provide modern privacy protections to match today’s technology.
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Press ReleaseDec 2024
Free Speech
National Security
ACLU and Partners Urge Supreme Court to Block TikTok BanACLU and Partners Urge Supreme Court to Block TikTok Ban
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Press ReleaseDec 2024
National Security
Religious Liberty
ACLU Statement on New White House Strategy to Counter IslamophobiaACLU Statement on New White House Strategy to Counter Islamophobia
WASHINGTON – The Biden administration today released the first-ever national strategy to counter Islamophobia and related forms of bias and discrimination, including hate against Arab, Sikh, and South Asian Americans. In advance of the strategy, American Civil Liberties Union and its partners had urged the administration to overhaul government programs that reflect anti-Muslim discrimination. In particular, we have called for urgent action to constrain governmental agencies from continuing to exercise their authorities and technology to wrongly surveil and investigate, watchlist, and question and detain Muslims at the border, as well as deny immigration benefits to people from Muslim-majority countries. While the White House raised expectations that many of these issues would be addressed, the final strategy ended up falling far short. The following is a statement from Hina Shamsi, director of the ACLU’s National Security Project: “While this strategy acknowledges discrimination and its harms, it does little to end them and is a squandered opportunity. For decades, American officials have invoked national security to pass laws and implement programs that disproportionately harm Muslims and people perceived to be Muslim. A serious anti-discrimination strategy would concretely address multiple bias-infused government practices that deny our communities equal participation in civic life and our democracy, like federal watchlisting, surveillance, and investigation. We’re profoundly frustrated that the administration didn’t take even the basic, overdue step of recognizing that anti-Muslim discrimination is uniquely normalized and embedded in government policies.” -
VirginiaDec 2024
National Security
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Our client, Nizar Trabelsi, is in the United States against his will. The federal government brought him here from Belgium more than a decade ago and charged him with terrorism-related crimes. At trial, the government’s case failed: a federal jury found Mr. Trabelsi not guilty. But instead of allowing Mr. Trabelsi to return to Belgium after his acquittal, the United States placed him in highly restrictive immigration detention and began an ongoing effort to force him to Tunisia, where he was born and where he will very likely be tortured. Mr. Trabelsi’s detention violates the Constitution, immigration law, and the extradition treaty between the United States and Belgium. Through this lawsuit, he seeks to return to Belgium, and he demands an immediate improvement of his detention conditions. -
Press ReleaseDec 2024
National Security
Immigrants' Rights
Federal Judge Rejects Acquitted Man’s Argument That His Immigration Detention Is UnlawfulFederal Judge Rejects Acquitted Man’s Argument That His Immigration Detention Is Unlawful
ALEXANDRIA, Va. — This week, the U.S. District Court for the Eastern District of Virginia ruled that the court does not have jurisdiction to decide whether the government can continue to detain Nizar Trabelsi, a Tunisian national who was brought to the United States against his will for prosecution and was cleared of all charges last year. The ruling means the United States will be able to continue to detain Mr. Trabelsi while it attempts to deport him to Tunisia, where he was born and where, as an immigration judge ruled earlier this year, he will likely face torture. The court also concluded that even if it did have jurisdiction over Mr. Trabelsi’s case, his claims challenging the government’s detention of him would fail. “Reviewing claims that the government is holding someone unlawfully is at the core of the judicial function, and we’re heartbroken for our client that the court got this so wrong,” said Brett Max Kaufman, senior staff attorney with the ACLU’s Center for Democracy. “The government’s arguments in defense of Mr. Trabelsi’s detention makes a hash of the Constitution, immigration laws, and its own extradition treaty.” In 2013, the United States forcibly extradited Mr. Trabelsi from Belgium to face criminal charges in the United States. In July 2023, after almost 10 years of highly restrictive pretrial detention, a federal jury cleared Mr. Trabelsi of all charges. But instead of releasing Mr. Trabelsi or returning him to Belgium, the U.S. transferred him to immigration detention, wrongly treating him as an applicant for admission and placing him in the deportation process. Over the years, the Belgian government has issued multiple formal diplomatic requests asking the U.S. to facilitate his return, but the U.S. has refused to send him back. Mr. Trabelsi filed a lawsuit challenging the government's authority to detain him. He also sought immediate improvements to his detention conditions. Those claims were not part of the court’s ruling today, and will continue to be litigated on a separate track. “Mr. Trabelsi only wants to return to Belgium after being illegally extradited to the United States, held for ten years, and then acquitted by a jury of any crimes,” said Nicole Hallett, clinical professor of law and director of the Immigrants’ Rights Clinic at the University of Chicago Law School. “He cannot be held indefinitely and we will continue to fight to make sure that justice ultimately prevails.” Mr. Trabelsi is represented by the American Civil Liberties Union, the University of Chicago Law School’s Immigrants’ Rights Clinic, the ACLU of Virginia, and Professor Jonathan Hafetz of Seton Hall Law School. The complaint in Trabelsi v. Crawford was filed against Jeffrey Crawford, warden of the Farmville Detention Center where Mr. Trabelsi is being held; Liana Castano, ICE field office director for the Washington Field Office; Alejandro Mayorkas, secretary of the Department of Homeland Security; and Merrick Garland, U.S. attorney general.