(DECLASSIFED BLOG/NEWSWEEK) — The Justice Department is poised this week to publicly defend a little-known law-enforcement practice that critics say may be the “sleeper” privacy issue of the 21st century: the collection of cell-phone “tracking” records that identify the physical locations where the phones have been.
It may come as a surprise to most of the owners of the country's 277 million cell phones, but their cell-phone company retains records of where their device has been at all times—either because the phones have tiny GPS devices embedded inside or because each phone call is routed through towers that can be used to pinpoint the phones’ location to within areas as small as a few hundred feet.
The thrust of the department’s argument: cell-phone tracking records are “routine business records” that contain “non content” data and are therefore “unprotected” under the Fourth Amendment of the Constitution.
Federal prosecutors were even more blunt in an earlier cell-phone tracking dispute, although in ways that might hardly be reassuring to most cell-phone users. “One who does not wish to disclose his movements to the government need not use a cellular telephone,” the prosecutors wrote.