Court Says Your Mobile Phone's Location Data Protected By The 4th Amendment

from the for-now... dept

Fri, Sep 12th 2008 2:47am — Mike Masnick

There's been quite an attack on the 4th Amendment's requirement for "probable cause" for gov't searches. For instance, the Justice Department is asking Congress to scale back what "probable cause" applies to, while other law enforcement officials have found clever tricks for getting around it by doing things like subpoenaing third party data providers -- like your mobile phone provider -- to get info on you without having to show probable cause.

However, a court today pushed back, noting that your mobile phone location data is protected under the 4th Amendment, and law enforcement should need to show probable cause before getting a warrant to obtain that info from your mobile phone provider. This is definitely a big win for those who believe in the 4th Amendment, though it will probably only last until Congress changes the law, as per requested, to allow law enforcement to ignore probable cause. Then we'll have a constitutional legal battle to watch, but it will take years to resolve.

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Filed Under: 4th amendment, privacy, probable cause

22 Comments

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inc, 12 Sep 2008 @ 4:07am

I'm still in awe that the same people charged with upholding the laws in the Constitution are the very same that want to piss all over it when their job gets a little tough. The 4th amendment is there for this very reason.
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Anonymous Coward, 12 Sep 2008 @ 4:13am

Republicans foiled again . . .
Try as they might, the Bush administration and the Republican party doesn’t seem quite able to completely destroy the constitution and basic founding values of this country. It’s certainly not for lack of trying though, if only they would try that hard to find Osama BinLadin.
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bobbknight, 12 Sep 2008 @ 4:22am

Re: No
The Forth Fifth, Sixth and Seventh amendments to the Constitution were not put in place to encumber law enforcement. They were put in place to prevent egregious acts by man over man. It is good that you are thinking somewhat about our rights. Original Intent is the true gate keeper here. Our trouble as a nation and a people is we have lost the meaning of the Constitution and why it was written.
This ruling is good for us, we now need to get GPS data the same protection.
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Anonymous But Not A Coward, 12 Sep 2008 @ 4:27am

Why Is This Partisan?
This is definitely a big win for those who believe in the 4th Amendment, though it will probably only last until Congress changes the law, as per requested, to allow law enforcement to ignore probable cause.

Think and reflect upon recent events in congress (Controled by whom?) where all that was asked for by the president was given to him on a silver platter.
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Anonymous Coward, 12 Sep 2008 @ 4:52am

Think and reflect upon recent events in congress (Controled by whom?) where all that was asked for by the president was given to him on a silver platter.

Completely controlled by Republicans 6 of the last 8 years (remember all the Abermoff-Delay corruptions scandals? Or maybe the Craig, Foley, etc homosexual scandals, etc etc etc).
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Anonymous Coward, 12 Sep 2008 @ 5:23am

Re: Re: No
"Our trouble as a nation and a people is we have lost the meaning of the Constitution and why it was written."

QFT

There needs to be more education on the Constitution. A week in history class in high school is not enough.

Hell, I'd say do the brief "intro" to it in middle school then in high school do a full quarter/semester class getting into the nitty gritty.

I mean it's the freaking Constitution. EVERY American should know it and what it stands for. It is part of who we are!
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Anonymous Coward, 12 Sep 2008 @ 6:21am

I'm so sick of these stupid liberals pointing their fingers at conservatives for all the problems they themselves have made. How can you even admit that you're a liberal? It's like saying I'm a gay loving, baby killing, tax increasing, monster.
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hegemon13, 12 Sep 2008 @ 6:25am

"...but it will take years to resolve."
No, it won't, unfortunately. It will take several months until Congress declares mobile telecom immunity, and the case is thrown out. Just wait.
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WG, 12 Sep 2008 @ 6:29am

Re: Re: Re: No
The government would NEVER allow for more constitutional education. That would be like Rome encouraging students to study historic biblical documents, as opposed to what currently happens... Educating students on pre-defined, approved Catholic Doctrine.

The Government wants to TELL you what the constitution means, they don't want citizens interpreting it for themselves.
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hegemon13, 12 Sep 2008 @ 6:30am

Re:
You're a jackass. And, no, I'm not at all a liberal.

That said, you're first point was sensible. The most blatant violations of our rights (FISA w/ telecom immunity, the just-passed RIAA welfare bill, etc) have been passed by a Democratic-majority congress. If Democrats want to be angry, they should be going after the people THEY elected who aren't doing their job of representing the people.
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Bob, 12 Sep 2008 @ 6:34am

4th Amendment
You have no 4th amendment privledge for materials held by a third party. I agree that a search of your cell phone for location information requires probable cause, but a searching of the cell phone providers records only requires a supoena. You don't need probable cause to get a subpoena.
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Sierra Night Tide, 12 Sep 2008 @ 6:55am

Re:
I had to read this twice....

"I'm so sick of these stupid liberals pointing their fingers at conservatives for all the problems they themselves have made. How can you even admit that you're a liberal? It's like saying I'm a gay loving, baby killing, tax increasing, monster"

Hua? What do you read? Where and who sells crap like this? How much education do you have? Get More!!!!!
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Anonymous Coward, 12 Sep 2008 @ 7:07am

Re: Republicans foiled again . . .
The constitution isn't being destroyed by one administration or another, rather it is the Supreme Court that is doing its best to undermine the validity of the document. Horrible judicial decisions have been made over the course of the last 50 years, including Roe V Wade, one of the worst missteps of all time. Thank God we finally had a president willing to put smart judges on the bench. (Roberts and Alito) Maybe once Ginsberg and Breyer pass away we'll actually start enforcing the spirit of the Constitution.
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Anonymous Coward, 12 Sep 2008 @ 7:57am

old ass men
too many 70+ judges who couldn't send an email deciding the laws.
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dennis parrott, 12 Sep 2008 @ 7:58am

re: Republicans Foiled Again...
@Anonymous Coward:

It is NOT just the current crop of Republicrats that has led the assault on our Constitution. The current crop of Demublicans do it just as well as their counterparts.

To wit, where was Congress when things like the Patriot Act, The Protecting America Act, the DMCA, et. al. were debated and hurled full force at our Constitution? How many stood up for the principles behind that document? I could argue that most, if not all, abrogated their oaths of office to "protect and defend".

Where was that same group of preening idiots when they, in full flight from their Constitutional power to declare war, "delegated" that power to the Executive Branch and then our fabulous Commander-in-Twit took us to Iraq?

No, it is NOT just the Republicans leading this assault.

But neither is it just a recent phenomena. Lincoln led the assault by declaring war on half of the states (where is THAT in the Constitution?) and doing little things like suspending habeus corpus, imprisoning journalists and so on. Those who followed rarely did anything to reverse the flow of power to the Federal government and many have only done things to steal power from the States and from the People themselves.

The more recent steamrolling of one of the greatest achievements of mankind has been led not so much by political parties as by ideologically bankrupt monsters known as "neoconservatives". These bastards have infected our government at all levels and have corrupted every Presidency and Executive Branch since Nixon. The neoconservatives do not believe in the Constitution or that all rights are invested in a person at birth. They believe that decisions should be made by a ruling elite. There is a great BBC documentary about this called "The Power of Nightmares"; you should watch it. They think that it is OK to outright lie to achieve their aims.

There are a precious few people in politics who do not go with "the neocon flow" like Ron Paul. They are very few and far between. Unfortunately too few people really understand the underlying philosophy that animates our founding documents and fail to understand why we should all be pushing back against these attacks on our rights and liberties.

In my humble opinion, the best place to start would be to fire Congress and replace them with Libertarians, Paulites, strict Constitutionalists, ... anybody BUT those deeply entrenched in one of the two major parties.

Oh, and as for abrogation of their oaths of office, where were those Democrats when Kucinich brought forth charges that should lead to impeachment against both Cheney and Bush? People get all wound up about the stuff those two have done but where were the Democrats after they controlled Congress recently? They are COMPLICIT in the crime since they helped commit it and since have done nothing about it.
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y8, 12 Sep 2008 @ 8:04am

Re:
I'm not sure why you keep saying that congress has been completely controlled by Republicans for 6 of the last 8 years.

There are 49 republicans and 49 democrats in the current senate. Joseph Lieberman and Bernard Sanders are listed as independents but are expected to vote with the democrats. (From wiki)

198 republicans in the congress out of 435 representatives.

The data seems to reveal your mistake.
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Greg, 12 Sep 2008 @ 8:21am

Re: Republicans foiled again . . .by the anonymous dumbass
No wonder you remained anonymous. You're an absolute f'n moron. Congress is run by Demorats (c omitted on purpose for you spelling nazi's.) Most of them are Liberals. Liberals are the ones that want to take your freedom away so they can run every aspect of your life.

Conservatives uphold the Constitution. Yes, there are exceptions, but on the whole, what I've stated here is fact.
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y8, 12 Sep 2008 @ 8:37am

Stick your head in the sand if you're afraid of the facts
Dear Liberal Anon Coward:

Just to clarify, you can check the statistics here:
http://clerk.house.gov/member_info/electionInfo/2006/Table.htm

Since you've shown how smart you are, I'll make sure to tell you to scroll to the bottom of the page to get the historical break down of Republican vs. Democrat (including all other parties) for the House and the Senate back to 1867. Very interesting site.

Anyhow: Senate (100 members) House (435 members)
Years Dem Rep Dem Rep
2001–2003 50(50%) 50(50%) 212(49%) 221(51%)
2003–2005 48(48%) 51(51%) 204(47%) 229(53%)
2005–2007 44(44%) 55(55%) 202(46%) 232(53%)
2007–2009 49(49%) 49(49%) 233(54%) 202(46%)

Not exactly overwhelming majorities there. And why is it that these problems seem to be coming more now than they did during the slight Republican majority?
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Peregrine, 12 Sep 2008 @ 9:11am

Re: Re: Republicans foiled again . . .by the anonymous dumbass
The major exceptions being gay rights, woman's rights and of course the rights of minorities and immigrants.
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Anon2, 12 Sep 2008 @ 1:07pm

probable cause
Um, Bob -- the government most certainly does need probable cause to subpoena evidence, same as it does to obtain evidence from your own cellphone or whatever. The Fourth Amendment affords no distinction between information in your possession and information held by third-parties, at least not simply based on that factor alone. The question is whether the information is private, i.e., is of the sort a reasonable person would expect would remain private even if in the hands of a third-party. Phone company records were always considered by courts to be that kind of private information, which is why there's such a big brouhaha over the current effort to grant telecom companies immunity in the FISA context.
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Anonymous Coward, 12 Sep 2008 @ 6:00pm

Here's a wild thought..just don't get a mobile phone. I admit they're convenient under some circumstances but they aren't absolutely essential.
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HONEST DISCOVERY, 14 Dec 2008 @ 2:10am

the san diego county sheriff department has long history of protecting corrupt public officials at the expense of the
the taxpayer.

These are sitting public officials. like phyliss russell entire family fencing stolen goods, importing and distributing narcotis and laundering of thoses proceeds while holding public office. assaulting innocent taxpayers
strogn armerd robbery and larceny and extortion in exchange for goverment contracts and the abilty to criminal proceeds with out getitng caught because of [protect provided by the san diego county deputy sheriff assocition political action comittee. With out protection from the San diego county deputy sheriff assocition political action commitee, the phyliss russel republican could not have operated a continuous criminal enterprise spannig almost 25 years while holding public office. and it is current to this date from dec 2008, providing law enforcement protection for a corrupt public official, dealing narcotis for 25 years while holding public office is a crime and laundering of the proceeds is another crime.
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