Mobile phone tacking

Mark Rasch has been astounded by the arguments of government lawyers in their recent unsuccessful attempts to get a court to allow law enforcement tracking of suspects through their cell phones:

"the government claimed (with a straight face, no less) that as soon as the cell towers in question determined your location and recorded this fact, these were now "historical" records subject to the lower standard. Thus, according to the government, there is no such thing as "real time" data or even data "in transmission."

As a technical matter, this is likely true. Indeed, I have argued that there is no such thing as interception of packets "in transmission." The packets have to be stopped, copied, and reassembled to be read. Nevertheless, the law makes a distinction between historical data and real time data. That the government would seek to extinguish this distinction in this case does not bode well for the government's position in other cases. The government could then argue that it could listen in on your VOIP calls with nothing more than a subpoena (for which no probable cause is required) because all it is doing is looking at "historical" packets - albeit merely hundredths of a second in the past. This is clearly the opposite of the delicate balance Congress sought to strike. Thus, it appears that the government is seeking to convert all interceptions into seizures of "historical" data, and adopt the lower standards for such data."