Exclusive: DOJ to Appeal ‘Tower Dump’ Ruling

On Tuesday, Justice Department prosecutors filed a motion with the court that they will appeal a federal judge’s ground-breaking order that found so-called ‘Tower Dumps’ unconstitutional. As Court Watch reported nearly two weeks ago, a federal judge in Mississippi ruled that tower dumps – a frequently used law enforcement technique that pulls large swaths of data from cellular towers to find alleged criminal activity – ran counter to the Fourth Amendment.

The order, if it stands, would remove an existing law enforcement tool that has been used in the past to investigate crimes such as gun store robberies and destruction of federal property. 

The FBI had initially submitted four sealed search warrants for the tower dump’s data as part of an investigation into a string of shootings and car thefts involving an unnamed violent gang. U.S. Magistrate Judge Andrew Harris repeatedly declined to authorize the search warrants, even after the DOJ submitted a follow-up memorandum clarifying their position, and a conference call was held with Judge Harris to address his concerns.

The order marked the first instance in which a judge ruled against law enforcement’s use of tower dumps, extending the scope of an August ruling in a federal appeals court that found the use of a geofence warrant — in which law enforcement sends a request to Google for the location data of phones at a specific location  — was unconstitutional.

In his original ruling, Harris wrote, “The Government is essentially asking the Court to allow it access to an entire haystack because it may contain a needle…The Fourth Amendment does not permit law enforcement to rummage through troves of data and themselves determine the existence of probable cause to support the seizure of that data,” the order stated.

Writing in their motion anticipating an appeal, prosecutors noted that “the matter before this Court involves a rather novel issue that has not been directly or specifically addressed by this Court or the Fifth Circuit.” They requested an additional two weeks to “file its motion to reverse or vacate the Magistrate Judge’s order declining to sign the search warrants.” Today, a judge approved their extension request. 

The motion for more time was filed by an Assistant U.S. Attorney in the Southern District of Mississippi and a trial attorney with Main Justice’s Criminal Division’s Organized Crime and Gang Section. The D.C. trial attorney was not previously associated with the case and entered an appearance with the Mississippi federal court yesterday. 

A Justice Department public affairs representative declined to comment beyond what was submitted in federal court. 

The DOJ appeal is due to the court by March 21st.