• On October 29, 2010, Magistrate Judge Stephen Wm. Smith of the US District Court for the Southern District of Texas denied, on constitutional grounds, the US Government’s request, under the Stored Communications Act, to compel wireless carriers to provide two months’ worth of historical cell site information for certain persons of interest in a Government investigation. As he explained, “the Government seeks continuous location data to track the target phone over a two month period, whether the phone was in active use or not.” Despite acknowledging that the court had previously granted similar requests, Mag. Smith concluded that “recent months have brought to light important developments in both technology and caselaw raising serious constitutional doubts about such rulings.” With respect to the technological developments, he concluded that, with current location technology, cell site information can and often does reveal non-public information about constitutionally protected spaces. The advances in technology have immediate legal ramifications, he found, agreeing with recent case law: “court decisions allowing the Government to compel cell site data without a probable cause warrant were based on yesteryear’s assumption that cell site data (especially from a single tower) could locate users only imprecisely. Given that network-based technology is now capable of isolating a mobile phone user to a particular floor or room within a building, and that such increasingly precise ‘call detail records’ are now kept by [cellular service] providers, the continuing vitality of those decisions must be doubted (with all due respect).” Given these advances in wireless technology, the carriers’ more sustained record-keeping practices, and the court’s conclusion that such data is not voluntarily conveyed by the user to the carrier, Mag. Smith held that warrantless requests for such data could no longer be granted consistent with the Fourth Amendment. In re Application of the United States of America for Historical Cell Site Data, Nos. H-10-998M, et al. (S.D. Tex.).
  • On October 28, 2010, the Supreme Court of Washington affirmed en banc the entry of summary judgment for the Washington Department of Revenue against claims by TracFone Wireless to recover state enhanced 911 (e911) excise taxes that it claimed have not applied to it since 2003. TracFone is a reseller of other wireless carriers’ services and sells prepaid minutes, which may or may not ultimately be used by the customer, to retail customers who provide only their zip code to TracFone; it argued that, under those facts, it was not subject to the state’s e911 tax which is imposed on “all radio access lines whose place of primary use is located within the state, ... [which tax] shall be remitted to the department of revenue by radio communications service companies, including those companies that resell radio access lines ... .” The Supreme Court concluded that “the plain language of the relevant statutes imposes the tax on prepaid wireless cell phone service.” The court also rejected TracFone’s assertions that it could not accurately compute the tax based on the information it collected from its prepaid users, stating that “while TracFone has not required much in the way of personal information for its prepaid wireless service, it does require, at a minimum, the zip code of the place where the phone will be primarily used.” The Court also agreed with the Department that “it is not required to explain to TracFone how to conduct its business in order to comply with the tax collection obligation.” TracFone Wireless, Inc. v. Wash. Dept. of Revenue, No. 82741-9.