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Arguments Heard in Vermont Case About Tracking Cell Phones Without Warrant
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October 19, 2010

Arguments Heard in Vermont Case About Tracking Cell Phones Without Warrant

By Ed Silverstein, TMCnet Contributor


Arguments were heard this week before a Vermont Superior Court judge about whether police are tracking individuals’ whereabouts through location data generated by cell phones.

There is a high wall protecting the secrecy of police investigations, and it can be breached in only very limited circumstances, argued a lawyer for the Vermont Attorney General’s Office.

But the Vermont chapter of the American Civil Liberties Union countered if Vermonters can’t get information about how police are conducting investigations, how can citizens make sure investigations are on the up-and-up and constitutional violations aren’t occurring?


That was the gist of the ACLU-VT’s response to the state’s motion for summary judgment in a case over law enforcement use of cell phone data.

The civil liberties advocates have been seeking records that might show whether police are tracking individuals’ whereabouts through location data generated by cell phones.

The state Attorney General’s office twice denied administrative requests for the records, prompting the ACLU lawsuit.

While the state continues to insist records on cell phone tracking data are secret, the Superior Court has refused to allow a list of the records (a so-called “Vaughn index”) to be sealed, granting the public the first acknowledgment that state law enforcement officers are tracking people’s location via their cell phones without first obtaining a warrant, according to the ACLU.

Instead, an “inquest” is utilized by prosecutors to issue a subpoena. An inquest is secret; the public can’t find out what happens in the proceeding.

Judge Geoffrey Crawford made no ruling on Monday. Instead, he listened to arguments from each side, and took the matter under consideration.

He noted that recently there have been a series of public records requests in the news, and that it appeared the administrative branch of government – not the courts – was deciding where the balance between public and confidential records lay, according to the ACLU.

He also suggested that the ACLU had already won the case when he ordered a Vaughn index of cell phone data requests be made public. “What more do you want to know?” he asked.

The ACLU wants to know how the determination is made that investigators may access phone records that are otherwise private. There is no guarantee of consistency — no standard for judicial review — governing the granting of access, the ACLU contends.

“In a way, the ACLU is bringing a collateral attack on a whole bunch of proceedings without being a part of any of those proceedings," Assistant Attorney General Eve Jacobs-Carnahan, who argued the state's case, was quoted by the AP. "And it's trying to get into that through a public records request, and that's not appropriate."

The AP reported that revealing when and how cell phone tracking is used in an investigation would have widespread ramifications in the criminal process, according to Jacobs-Carnahan.

"The legislature has said that it's going to protect the investigatory process, and you're trying to break it up into little pieces and saying `Oh, it would be nice to have this piece of information or that piece of information.' But once you start going down that road, you're going to get into all the questions of how you decide which ones are appropriate to disclose and which aren't," she added.


Ed Silverstein is a TMCnet contributor. To read more of his articles, please visit his columnist page.

Edited by Tammy Wolf


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