Judge Actually Recognizes The 4th Amendment: Says Police Can't Get Location Info From Telcos To Arrest You
from the they-have-other-ways... dept
With all the reports of law enforcement collecting tons of location info from telcos without a warrant, as well as a bunch of court rulings that seem to chip away at what's left of the 4th Amendment, it's somewhat surprising to see a magistrate judge say that police cannot use a warrant to find out your location from a mobile operator, for the purpose of arresting you. From Orin Kerr's summary of the ruling:Here’s the basic reasoning of the opinion. First Judge Gauvey creates what a appears to be a new distinction in Fourth Amendment law: a distinction between (a) Fourth Amendment rights in location at a given time, and (b) Fourth Amendment rights in movement over time. According to Judge Gauvey, individuals have a reasonable expectation of privacy in both. There is a reasonable expectation of privacy as to a person’s location if a person cannot be visually observed in that same way. And there is a reasonable expectation of privacy in movements, which Judge Gauvey seems to be taking from the DC Circuit’s Maynard/Jones “mosaic theory” case (which the Supreme Court recently agreed to hear). Judge Gauvey then reasons that if everyone has this Fourth Amendment right, people who have warrants out for their arrest have this right to privacy, too. For that reason, the information held by the phone company as to the location of the phone user is protected by the Fourth Amendment.Kerr suggests that the case law actually disagrees with the judge in this case, and even the judge appears to admit that she thinks the Supreme Court might disagree, but she said without specific guidance from the Supreme Court, she believes her ruling is correct.
Judge Gauvey then considers whether the Fourth Amendment allows a warrant to be issued based on probable cause that the information will help execute an arrest warrant. She concludes the answer is no: A Fourth Amendment warrant requires probable cause that evidence or contraband is located in the place to be searched or that a person who committed a crime is in the place to be searched. Mere probable cause to believe that location information would help the police execute a warrant is not enough under the Fourth Amendment.
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Filed Under: 4th amendment, gps, location, privacy
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This is whats wrong with Amerika
Lets look at this scenario, some piece of #@$% child molester grabs a kid, the cops identify him, but cant trace his location via cell phone, cause that would be an invasion of his privacy...
Give your head shake...
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Re: This is whats wrong with Amerika
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Re: Re: This is whats wrong with Amerika
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Re: This is whats wrong with Amerika
I don't think we have a problem with lawbreakers and criminals being arrested.
There is a problem, however, with the stripping of rights done to get to that point.
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Re: This is whats wrong with Amerika
I know, crazy.
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Re: This is whats wrong with Amerika
Just because a judge is signing them away, does NOT mean I'm giving them away.
" Why shouldn't the police be allowed to use real time telco info to locate someone."
Because the impetus is on them to prove that someone is guilty of crimes committed and if they're going to make an arrest, it's going to be based on evidence. Evidence of residency, evidence of a weapon used, hell, even evidence of description. But evidence based on what a cell phone wire says about a person's location? You know what would happen after I discover my phone has the capability to give law enforcement my exact location?
First thing tomorrow, I'm hacking my phone, deactivating that software, and using my phone to make calls to my family and friends. Government, even law enforcement, does not need to know all of my private details.
" If they have an arrest warrant, there is a pretty good chance that person did something they shouldn't have, and you should all be happy they are picked up in a timely manor."
And by all means, law enforcement already has that information. Cell phone tracking is not required. Once again, so you understand this. YOU DO NOT NEED TO TRACK A CELL PHONE TO SERVE A WARRANT!
"Lets look at this scenario, some piece of #@$% child molester grabs a kid, the cops identify him, but cant trace his location via cell phone, cause that would be an invasion of his privacy..."
Ok, let's take that scenario and ask one simple question.
What if police get the data wrong, pick up the wrong person, make a public statement about it, and ruin one person's life and reputation based on cell phone data? Why didn't they pick up the slack, track the location of the person to a home and pick up that piece of #@$% child molester to a house, watch it, and make sure it's the right person?
This is the same as the IP location for copyright law. It's not tied to a person and is prone to error. Why do you want so much to give law enforcement so many powers when they just need to put up some more elbow grease?
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Re: Re: This is whats wrong with Amerika
Better to take the battery out, when your not using it. Three benefits come from this.
1. Improved battery life.
2. No tracking ability.
3. Relief from your electronic leash.
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Re: This is whats wrong with Amerika
"Really, Americans are giving away their rights left, right and center in the name of security. Why shouldn't the police be allowed to use real time telco info to locate someone."
How could you talk about Americans giving away their rights for the sake of security in one breath and then turn around in the next and say it's alright for police to get info in a backhanded way.
I don't get your reasoning.
Just asking.
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@ #1-Re: This is whats wrong with Amerika
But if sarcasm wasn't intended, I'm flabbergasted:
- "Americans are giving away their rights..." has exactly what to do with the article? It's about the actual enforcement of Constitutional rights FOR A CHANGE! Can you say (or even better, look up), "non-sequitur?"
- Questions normally end with a question mark. "Why" is one of the usually interrogatory sentence starters.
- To answer the incorrectly punctuated question, nobody said the police couldn't use that information. This case is about using that information to execute an arrest warrant, which was deemed insufficient reason to issue a warrant for the telco info.
- "...pretty good chance..." is only that. In this country, the standard is innocent until proven guilty, despite recent evidence to the contrary. However, it is still the law of the land. (And this is what's RIGHT about America.)
- I would be happy if accused perpetrators all frequented "...a timely manor." Since a manor is a building, the police can simply stake the place out and execute the arrest warrant when the suspect shows up.
- Your "scenario" is entirely without merit. An abducted child would likely be considered to be in danger of imminent harm, which would override the perpetrator's reasonable expectation of privacy. A warrant would be issued on that ground, and the telco would happily comply.
- I did shake my head in sorrow, but not for the reason you apparently wanted. Sorry.
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Re: This is whats wrong with Amerika
Give your head shake...
Nice of you to trot out the child-molester boogeyman. Want to try for Muslim terrorist next? Go back to sleep.
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Give your head shake..."
Did you even RTFA? The judge ruled that the fourth amendment applies UNLESS there is reasonable suspicion that the person is committing a crime. In case you missed it - here ya go:
"She concludes the answer is no: A Fourth Amendment warrant requires probable cause that evidence or contraband is located in the place to be searched or that a person who committed a crime is in the place to be searched"
So your 'child molester theory' is null and void. HAND!
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Time to use Telex again LoL
Seriously, that paper has one good idea and that is cryptographic steganography using HTPPS which makes data invisible to others.
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Question on NSLs
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Not sure I agree...
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Re: Not sure I agree...
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While I believe..
The federal government's Gestapo will not allow such silly things as the constitution to stop them from arresting whoever they feel like, regardless of whether there is any probable cause or not.
It's sad when you we are in a situation where the highest levels of the government feel that the Constitution are simply obstacles to get past.
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Re: While I believe..
The airwaves used to make the transmissions are public property, and could be intercepted by anyone.
If you want privacy, you should do the electronic version of closing the curtains, that is to say turn off your phone.
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Re: Re: While I believe..
Sad but true.
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Warrants are supposed to list the persons and places to be searched or arrested based on their being involved in the crime.
Location data is less like a person to be arrested or location to be searched and more like a potential computerized witness or some sort of raw information.
I can see it now: "Phone, where were you on the night of August 11th?"
Though based on this reasoning, it may be reasonable to get a warrant to search phone company premises in order to obtain the data, rather than a warrant for 'location data.'
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