Further Down the Spiral

[octothorpe]

Caught this on the Ars Technica RSS feed:

Court: feds don't need probable cause to track your physical location via cell grid

A quote, from the original source:

The key legal issue in all of these cases is what level of judicial oversight is required to compel the disclosure of information sought by the government. Answering this question has turned on whether the data sought is "transactional information" generated by the mobile phone network (in which case it would be regulated under 18 USC 2703 sections (b) and (d)) or that it is equivalent to a mobile tracking device regulated under 18 USC 3117? If it is transactional data then it is available to the government under a so-called intermediate standard, less than probably cause, but more than a simple request. Under this rule, the government has to give a clear and articulable reason which the data is relevant to an ongoing investigation. It can't just be going on a fishing expedition.

Though the government advocated this position is all three cases, all three courts found that there must be a showing of probable cause. (This is all personally pretty interesting to me because I did a lot of work advocating for this new protection for transactional data back in 1994. At the time we (and I believe the Congress) was thinking about transactional information such as email and web access logs. We were not thinking about real time location data. My guess is that Congress will have to come back to this question to settle it.

Which brings up my question, why is "transactional information" somehow held to a lower standard? Couldn't you consider any electronic data transmission a "transaction" (consider HELO, ACK, etc)? This would then lead to the very slippery slope of all communication being able to be tapped under this lower standard (when all communication is digital, in whole, or even in part).


Grrr!