All modern wireless phones contain location tracking capability which can identify your exactly location down to a few feet. Supposed to be used for 911 emergency calls, your location can be tracked at any time, even if you aren’t using your phone. The government has been abusing that capability, and plans to continue doing so, for as long as it can get away with it.

What’s the big deal? The government is tracking people who are not even suspects in a criminal investigation, a pretty clear violation of the Fourth Amendment.

One more magistrate judge has refused to allow the government’s practice of secretly using cell phones to track people without probable cause — this time in the Southern District of New York (Manhattan). The magistrate judge declined to grant the government’s request “without further briefing from the Government concerning the propriety of issuing these orders.”

The SDNY judge sought further briefing due to an August decision from a magistrate judge in the Eastern District of New York (Long Island) denying a similar government request. The government provided a letter brief in support, and, upon the court’s request, the SDNY Federal Defender’s Office responded last week with an amicus brief in opposition.

The US Attorney for the SDNY faces an uphill battle: Two courts (the EDNY and the Southern District of Texas) have considered the government’s arguments so far, and both found them completely unpersuasive. Recognizing the importance of this decision, both magistrate judges urged an appeal in order to allow a Circuit Court to rule on this pernicious practice.

Nevertheless, the US Attorney’s Offices in those jurisdictions have elected not to appeal the adverse decisions. Curiously, this has not prevented the SDNY US Attorney from moving forward here. Indeed, the government’s brief reveals that US Attorney’s offices all over the country have “routinely applied for an obtained court orders [compelling] cellular telephone companies to report . . . cell site data, for a particular cell phone on a prospective basis.”

We can only hope that the government does not intend to continue this practice in whatever districts have not yet ruled against it: The Department of Justice should either stop seeking the tracking orders or have the courage to take it up to an appeals court. But until the DOJ stops, it is great to see one magistrate after another challenging the government and putting a stop to big brother in your pocket. — Electronic Frontier Foundation

It’s my belief that the government does not intend to stop abusing the capability to track people in real time, and this is why it doesn’t appeal the decisions.

To prevent yourself from being tracked using this capability, you must not only shut off your phone but also remove the battery. Modern wireless phones remain active when “off” and can continue to receive and transmit.