EFF: Texas Judge Briefed by EFF Affirms Phone Privacy

Electronic Frontier Foundation Media Release

For Immediate Release: Thursday, July 20, 2006

Contact:

Kevin Bankston
   Staff Attorney
   Electronic Frontier Foundation
   bankston@eff.org
   +1 415 436-9333 x126

Texas Judge Briefed by EFF Affirms Phone Privacy

Government Needs a Warrant to Get Dialed Digits That Are
Call Content

San Francisco - In the first ruling of its kind, a federal
magistrate judge has held that the government must obtain a
search warrant to collect the content of a telephone call,
even when that content is dialed digits like bank account
numbers, social security numbers or prescription refills.
The decision from Magistrate Judge Smith in Houston closely
follows the reasoning outlined in an amicus brief from the
Electronic Frontier Foundation (EFF) and the Center for
Democracy and Technology (CDT).

The Texas judge invited EFF to file the brief in response
to requests from government investigators to use a "pen
register" or "trap and trace device" to collect all numbers
dialed on a phone keypad after a call has been connected.
Investigators can typically get "pen/trap" orders under a
legal standard much lower than the "probable cause"
required for a typical phone-tapping warrant, because only
phone numbers used to connect the call are collected, not
the content of the phone call itself.

However, the judge found that when it comes to dialed
numbers that represent call content, federal statutes
require that investigators either get a probable cause
warrant or use filtering technology to ensure that only
dialed phone numbers are collected.  In fact, according to
the court, "Congress ordered law enforcement to do just
that, 12 years ago, yet the court notes that the
government's current practice is to collect all dialed
digits without using any filtering technology."

"Judge Smith correctly recognized that the privacy
protections for your phone calls shouldn't depend on
whether the information you are communicating is spoken or
dialed," said EFF Staff Attorney Kevin Bankston.  "Whether
it's your bank account number, your social security number,
your prescription refill, or even your vote for American
Idol, the government has to get a search warrant to tap the
numbers you dial after your call has been connected.
Allowing such taps without a warrant not only violates
longstanding statutes, as the court found here, but the
Constitution itself -- which makes it all the more
troubling that government investigators have been
collecting such information without a warrant for years."

In the same opinion, Judge Smith also rejected a new
government request to track the location of someone's cell
phone without a warrant.  EFF has briefed two other courts
on the cell-tracking issue, which has been a continuing
controversy since Judge Smith and another judge in New York
first published decisions on the issue last fall.  Those
decisions revealed that government investigators had
routinely been tracking cell phones for years without
getting warrants based on frivolous legal arguments.

For the judge's decision:
http://www.eff.org/legal/cases/Pen_Trap/Smith_dialed_digi...

For EFF and CDT's amicus brief:
http://www.eff.org/legal/cases/Pen_Trap/EFF-and-CDT-Amicu...

For this release:
http://www.eff.org/news/archives/2006_07.php#004830

About EFF

The Electronic Frontier Foundation is the leading civil
liberties organization working to protect rights in the
digital world. Founded in 1990, EFF actively encourages and
challenges industry and government to support free
expression and privacy online. EFF is a member-supported
organization and maintains one of the most linked-to
websites in the world at http://www.eff.org/


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