The case highlights the controversial use by the government of investigative tools made possible by newly ubiquitous technologies in an increasingly wireless world -- in this case mobile phones, which constantly update the companies that provide them with real-time information about their location.

ACLU attorney Catherine Crump told UPI that federal authorities were getting that information from the phone companies through an administrative subpoena, rather than a warrant that would be required for a phone tap, and were using it in prosecutions.

"We want the names of the people who're being prosecuted with this data, so we can help them contest its use �� and make sure the Fourth Amendment interest is raised," she said.

The amendment guarantees freedom from "unreasonable" searches and makes probable cause the standard for issuing warrants.

But Crump said the Justice Department was using administrative subpoenas -- which it applies for with sealed briefs in uncontested court hearings -- to get information from phone companies that would enable them to locate a mobile phone within a specific cell: the area served by a single signal relay tower.

"We know from court records that this data has been used to prosecute people," Crump said, "but by the time you read an opinion, it is too late. ... We have to get in at the inception of a case to raise the issue."

The ACLU's lawsuit, filed in federal court in Washington, seeks access under the Freedom of Information Act to "all records pertaining to (the Justice Department's) policies, procedures and practices followed to obtain mobile-phone location information for law enforcement purposes" without a warrant based on probable cause.

"In particular" the lawsuit seeks "information on criminal prosecutions of individuals who were tracked using mobile-phone location data where the government did not first secure a warrant."

Crump said the "absence of a comprehensive (public) statement of administration policy" on the issue meant it was impossible tell with any certainty how widespread the practice was, or what the internal procedures were -- if any -- for prosecutors to determine whether it was appropriate to get such data and use it in a criminal investigation.

"There have been reports that the way this is done violates Justice Department guidance that prosecutors should seek a warrant (based on probable cause) to get location information about people in private areas" like their homes, said Crump.

Justice spokesman Charles Miller said the department was reviewing the suit and declined further comment. But a court ruling from a case in the Western District of New York in 2006 shows that government lawyers relied on what the judge called a "convergence" theory.

Essentially, they argued that three laws -- none of which addressed the issue of real-time tracking information directly -- between them created a statutory authority to collect it.

"According to the government," wrote the judge, "'these three statutes converge to authorize a court to issue a prospective order allowing law enforcement to obtain' cell tower location information on a real-time basis."

The court should grant an order for the collection of such data, the government lawyers argued, as long as prosecutors presented "specific and articulable facts showing that there are reasonable grounds to believe that the ... records or other information sought are relevant and material to an ongoing criminal investigation" -- a much lower standard than probable cause.

Government lawyers also asserted that because the cell-tower site information revealed only the "general location" of the phone user, "a judicial determination of probable cause is not required."

They said that "even if a cell phone is deemed to be in the nature of a tracking device, there is no Fourth Amendment requirement that a search warrant be obtained when the location information is of a very general nature."

The precision with which a mobile phone can be located depends on the technology involved, and especially the size of the cell in which it is being used. According to court documents, cells range in size from several hundred feet across in dense urban areas such as Manhattan to more than 15 miles wide in rural areas.

Under a recent change to federal law, new phones have to contain either a GPS chip or some other way that emergency personnel can locate individuals who dial 9-1-1 on their cell phones to within a few feet.

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