Judge: warrantless cell phone tracking illegal.

• Position: PRIVACY - Lynn N. Hughes

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A Texas judge has declared the law allowing warrantless cell phone tracking unconstitutional.

"The records would show the date, time, called number, and location of the telephone when the call was made," U.S. District Court Judge Lynn N. Hughes of the Southern District of Texas wrote. "These data are constitutionally protected from this intrusion."

The law has been under fire, and even the U.S. Supreme Court is expected to weigh in soon. In a case where the government placed a GPS tracking device under a vehicle and monitored the driver's movements for a month without a search warrant, Chief Justice John Roberts told Michael Dreeben, deputy solicitor general of the U.S. Department of Justice: "If you win this case, then there is nothing to prevent the police or the government from monitoring 24 hours a day the public movement of every citizen of the United States."

Cell phone records are governed by the Electronic Communications Privacy Act, a 1986 law that allows law enforcement officers to obtain certain digital records (e.g., e-mail and cellphone records) without a search warrant. The Wall Street Journal has reported that a coalition of technology companies, including Google Inc., Microsoft Corp., and AT&T Corp., is lobbying Congress to up date the law to require search warrants in more digital investigations.

At the same time, lower court judges have been questioning the constitutionality of the law, which requires officers only to show "specific and articulable facts" the electronic records sought are "relevant and material" to an ongoing investigation, The Journal said. By comparison, for physical searches of a person's home, the government is required to show probable cause that a crime was committed and obtain a search warrant.

Since 2005, more than a dozen magistrate judges have denied applications for court orders to track cell phones without search warrants. In 2010, for example, Magistrate Judge...