Should The Feds Need A Warrant To Find Out Where Your Mobile Phone Is?

from the seems-reasonable dept

Fri, Feb 12th 2010 3:15pm — Mike Masnick

A couple months ago, we wrote about Julian Sanchez's realization (due to odd choices in gov't agencies redacting already publicly available info) that it appeared the government was likely regularly getting location info from mobile phone providers on users, using a much lower standard, without much oversight. In a somewhat related case, a court is now trying to determine if the location info on your mobile phone requires a warrant. The federal government is saying, no, claiming that Americans have no expectation of privacy as to where their phone is (even though that's likely where they are as well).

That seems like a very troubling bit of reasoning -- but no surprise from a federal government, that for years, has been stretching its ability to secretly spy on Americans. Hopefully the court shuts this down, but just the fact that the government would defend such a blatant overreach is troubling enough.

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Filed Under: location, privacy, warrants

31 Comments

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Nastybutler77 (profile), 12 Feb 2010 @ 3:35pm

In the words of my clueless ex-governor, "How's that hopey changey thing working out for ya?"

New administration, same abuse of power. Sigh...
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Pixelation, 12 Feb 2010 @ 3:37pm

"The federal government is saying, no, claiming that Americans have no expectation of privacy as to where their phone is (even though that's likely where they are as well)."

Um, this American does...

Another slippery slope.
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Coco Was Screwed, 12 Feb 2010 @ 4:13pm

They don't now
Locating a suspect doesn't require a warrant. If they try and use that location information as evidence, then I think they should need one. But purely locating someone, happens all the time without a warrant. They talk to your employer, your wife, your friends, your dealer...They don't need a warrant or subpoena for landline phone records http://en.wikipedia.org/wiki/Smith_v._Maryland

So why would they need one to get just your location?
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damengineer (profile), 12 Feb 2010 @ 4:36pm

People
The local radio station had a poll. 60% of those who responded thought it was OK to not require a warrant for the information.
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Brooks (profile), 12 Feb 2010 @ 4:45pm

Re: They don't now
You're confusing several different issues.

1) They can *ask* friends, family, and employers, but generally speaking, those people are not compelled to answer.

2) Nobody's saying authorities need a warrant to know someone's location. People are saying that they need a warrant to compel a phone company to turn over that data.

3) Your link is specifically about pen registers, or lists of phone calls made and received. Location is not a pen register. That case has no relevance here.

4) You can't say it's OK to use location data without a warrant to locate someone, but that they need a warrant to use that legally-obtained data as evidence. What, are they supposed to go to the judge and say "we've got this info, and we used it to arrest the guy, but now that we're bringing him to trial, we need you to issue a warrant for the info we already have and used"? That makes no sense at all.
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Soon, 12 Feb 2010 @ 4:55pm

The
RFID chips will provide all that info.. No need to worry about your silly phones..
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Steve R. (profile), 12 Feb 2010 @ 5:22pm

Interesting Conudrum
To a degree, if you are "broadcasting" your location, you have no expectation of privacy. So in that sense no warrant is needed. (Cell phones, when on, are always broadcasting.)

But at a deeper level, I would say "reading" the data would require a warrant. I acknowledge that these are very fine distinctions.

But what I find really troubling, we get all upset and work ourselves up to a frenzied lather when the Government does this. But few raise this concern when private industry does the same.

Private industry is doing this all the time and is seeking ever greater authority to spy on US citizens. Internet "filtering" ring a bell?????? The Anti-Mike even posted that complying with "due process" was an impediment when it comes to piracy.

If we expect the government to acquire warrants to read your content as part of a crime investigation; then private industry must also be required to follow due process.
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Moo, 12 Feb 2010 @ 5:28pm

How soon before
1. the cellphones do not really turn off
2. battery removal is a felony
3. you are required to have a cellphone
4. they just implant a device
5. civilation collapses
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btr1701 (profile), 12 Feb 2010 @ 8:35pm

Telcos
I guess I really suck at my job because every time I've asked for *any* kind of info from a telco, the first thing they ask is, "Do you have a subpoena? If not, come back when you do."

Yet apparently there's all these other federal agents out there who seem to be able to get a telco to do everything but their laundry merely be asking.

Damn...
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btr1701 (profile), 12 Feb 2010 @ 8:37pm

Re: Re: They don't now
> They can *ask* friends, family, and employers, but generally
> speaking, those people are not compelled to answer.

No, but they better be careful if they do answer, at least when the feds are involved. Anything other than the truth is a federal felony.

That's how the got Martha Stewart. She didn't go to prison for insider trading. She went for lying to a federal agent.
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btr1701 (profile), 12 Feb 2010 @ 8:39pm

Re: Interesting Conudrum
> If we expect the government to acquire warrants to read your
> content as part of a crime investigation; then private industry
> must also be required to follow due process.

Unfortunately the Constitution only restricts what the government can do. Private entities are not covered by the 4th Amendment.
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Coises (profile), 12 Feb 2010 @ 9:24pm

Re: Interesting Conudrum
Steve R.:
To a degree, if you are "broadcasting" your location, you have no expectation of privacy. So in that sense no warrant is needed. (Cell phones, when on, are always broadcasting.)

But at a deeper level, I would say "reading" the data would require a warrant. I acknowledge that these are very fine distinctions.
Perhaps a fine distinction, but I think an important one... because (at least in principle) it allows service providers to distinguish themselves by their willingness to contest government requests and require a warrant.
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Rasmus, 13 Feb 2010 @ 4:37am

Re: Telcos
I guess its because you investigate real crimes and not harassing people who just try to use their democratic rights and thus is a threat to people with power.
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Steve R. (profile), 13 Feb 2010 @ 5:04am

Re: Re: Interesting Conudrum
That's what I am saying, we need to require private industry to abide. Furthermore, it is an absurdity allowing private industry to ignore due process. Again, why the meek acceptance of private industry's oppression, while frothing at the mouth about government oppression?
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Anonymous Coward, 13 Feb 2010 @ 9:31am

Depends on the Situation
The government should be able to get your location if specific criteria are met:

1) A missing person's report has been filed by the person's friends/family

2) A warrant has been obtained. I'm fine with this being a warrant for arrest or just the to find their location

Otherwise, no dice
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Anonymous Coward, 13 Feb 2010 @ 11:12am

Re: Depends on the Situation
"The government should be able to get your location if specific criteria are met:

1) A missing person's report has been filed by the person's friends/family

2) A warrant has been obtained. I'm fine with this being a warrant for arrest or just the to find their location"

1. The paperwork better have statement and opt-in for electronic tracking, and the same people can opt out at any time. As well as a limitation that the info can only be used for the search and rescue and nothing more. It cannot be a blanket authorization that never expires.

1. The warrant has to be obtained and has to have language that applies directly to the use of electronic means to locate the person. It too cannot be a blanket order. It has to have limitations that prevent them form having lifetime access to the info.

I am of the opinion that the government needs to have permission to wipe their ass. They have been failing us for over 100 years, and need to be brought back under control. We need to make them accountable for everything they do. Congressman xyz wants a steak dinner at the taxpayer expense... approve or deny. Every doller spent should be accounted for by the people, not a select group of people that do not have our interests at heart.
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Guy Brindle (profile), 13 Feb 2010 @ 4:52pm

Re: Depends on the Situation
Google Buzz for mobile is public. When used will use a google map and pinpoint where you are. No warrants required
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nasch (profile), 13 Feb 2010 @ 5:22pm

Re: Re: Re: Interesting Conudrum
Generally you have a choice about whether to deal with private companies. They don't have the coercive authority that the government has. In situations where a company does have some control over you, consumer protection laws are warrented.
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WJG, 13 Feb 2010 @ 6:29pm

Can I do that?
My biggest problem with this is that we do not have the same rights as our government. I would be a lot more OK with this if I could get the location of a government employee as easily as they can get my location.
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bolton26, 14 Feb 2010 @ 12:39am

Tracing mobiles
got to be a good thing if people have done bad things
trace mobiles
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student aid, 14 Feb 2010 @ 2:25am

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Steven, 14 Feb 2010 @ 2:57am

Cell phone spy software
You would think that the feds should have a warrant to track your mobile phone location.

Does everyone know that anyone can download software online (Legally) and then you can take that software and install it on a cell phone. This software will track your mobile phone location. Cell phone location tracking software is becoming very popular.

Take a look at this video. You will find out all about cell phone location tracking.

http://www.cellphonelocationtracking.com

-
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The Anti-Mike (profile), 14 Feb 2010 @ 5:43am

Your phone is a broadcast over public airwaves. There should be little or no warrant requirements to follow what is on the public airwaves.

if you don't want to be tracked, turn off your cell phone.
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Lonzo5, 14 Feb 2010 @ 7:44am

Re: Re: They don't now
Good points, but in (at least California's) wiretap laws, any data obtained without consent (doesn't apply to the "authorities", of course) is inadmissible in court-- I know it's not directly related, but it is comforting to know that they are subject to at least some limitations in the evidence they can use against people. Also, if they're allowed to track your phone without a warrant, can you have them track it if it's stolen? In almost all cases not involving kidnapping they'll say no, and if that remains true, I'm 100% against it.
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Lonzo5, 14 Feb 2010 @ 7:47am

Re: Re: Re: Interesting Conudrum
Since corporations are simply government entities anyway, I tend to agree-- especially if they're going to be granted the rights of an individual. They have far too much power, with too few consequences.
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Cohen (profile), 14 Feb 2010 @ 1:36pm

Re: Depends on the Situation
Missing person's report from friends? Family?

If I was to go hiking the Appalachian trail, and I go missing for a weekend, a week, or longer, what gives my friends the right to sic the government on me to find me?

The only people who have the right to hunt me down electronically are those people who can prove the likelihood that some sort of crime or injury or problem may have happened.

It should take a long time, and evidence of a crime, before the government can infringe on my rights.

Consider if I've got a husband who has been beating the crap out of me, I don't want my local police department telling him where I am.

Using a cell phone does not mean I give up my right to be alone.
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Steve R. (profile), 14 Feb 2010 @ 5:43pm

Re: Re: Re: Re: Interesting Conudrum
@nasch: You miss a critical point. The concern over supposed choice when dealing with a private company is irrelevant. Private companies trade your data as a commodity, as if they own it, and don't even bother to pay you a royalty for its use. There is nothing from stopping AT&T, which you may actually have a "relationship" with from selling your location data to Sell by Night incorporated who you may not ever even heard of. Quit AT&T and move to Verizon, and they do the same. So where is the supposed "choice"?

If everyone in an industry is following the same onerous business practices, "choice" is a farce.
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Anonymous Coward, 15 Feb 2010 @ 1:41am

Re:
These are not public air waves, as they have been sold/licensed to vendors, which makes them private. Nice try, though.
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Anonymous Coward, 15 Feb 2010 @ 9:29am

Information wants to be free. Too bad it's your location.
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Sue, 15 Feb 2010 @ 2:07pm

No, that wouldn't do any good because they already know all of that. I do think that they should require a warrant to use that information, tho.
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terry_allen (profile), 17 Jun 2013 @ 5:13am

Re:
Well, I think you can expect Scalia for one to argue (you'd almost think he was a lawyer rather than a judge, you know?) that since cameras can record 'everything' at a public place, people outside their homes already have no expectation of privacy.
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