Surprise: Federal Court Says Warrant Needed For Mobile Phone Location Info
from the didn't-see-that-coming dept
There have been some mixed rulings on whether or not the government needs a warrant and to show probable cause (a la what's left of the 4th Amendment) in order to get mobile phone location info. Courts have ruled in different ways, but the federal courts, for the most part, have been much more agreeable to saying no warrant is needed (state court seem to lean the other way). However, in a bit of a surprise, a federal court went the other way and said a warrant is needed under the 4th Amendment.The court actually lays out the issue directly, and worries about what it means if the government can just get this info without showing probable cause:
What does this mean for ordinary Americans? That at all times, our physical movements are being monitored and recorded, and once the Government can make a showing of less-than-probable- cause, it may obtain these records of our movements, study the map our lives, and learn the many things we reveal about ourselves through our physical presence.After going through the relevant (and at times conflicting) laws and case law, the court notes that while general location info may be public, rather than private info, a massive collection of such info seems to go over the line. That's especially true when the government can access multiple records from multiple people:
The cell-site-location records at issue here currently enable the tracking of the vast majority of Americans. Thus, the collection of cell-site-location records effectively enables "mass" or "wholesale" electronic surveillance, and raises greater Fourth Amendment concerns than a single electronically surveilled car trip. This further supports the court's conclusion that cell-phone users maintain a reasonable expectation of privacy in long-term cell-site- location records and that the Government's obtaining these records constitutes a Fourth Amendment search.The court also dives into the controversy over the third party doctrine, which basically says that once you "give up" information to a third party, you no longer have 4th Amendment protections over it -- and in this case, the government argues that users have given up their location info to mobile operators. The court notes that the third party doctrine does still apply to such info, but that it should not apply to cumulative records, saying that this is an important limitation on the third party doctrine.
This court concludes that cumulative cell-site-location records implicate sufficiently serious protected privacy concerns that an exception to the third-party- disclosure doctrine should apply to them, as it does to content, to prohibit undue governmental intrusion. 7 Consequently, the court concludes that an exception to the third-party-disclosure doctrine applies here because cell-phone users have a reasonable expectation of privacy in cumulative cell-site-location records, despite the fact that those records are collected and stored by a third party.Finally, and most importantly, the court makes a plain language rejection of the excuses often used by the government to pick away at the 4th Amendment:
The fiction that the vast majority of the American population consents to warrantless government access to the records of a significant share of their movements by "choosing" to carry a cell phone must be rejected. In light of drastic developments in technology, the Fourth Amendment doctrine must evolve to preserve cell-phone user's reasonable expectation of privacy in cumulative cell-site-location records.It's definitely a compelling and well-reasoned argument from Judge Nicholas Garaufis, and we hope that other courts will follow. However, we fear that he walks such a fine line in distinguishing this ruling from other cases, that it will be way too easy for higher courts to overturn this ruling.
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: 4th amendment, location data, mobile phone, privacy, third party doctrine, warrants
Reader Comments
Subscribe: RSS
View by: Time | Thread
In this case, you are right. The law makes no indication of cumulative data in third party holdings. His ruling falls apart when you look at it this way:
Each piece of data (each location fix) is a single piece of data. Cumulative, it is just a collection of single data points. Is there any reason why a collection of unprotected data should suddenly be protected because it is together?
Would that imply that any time you give a third party more than one data point, you have somehow created a 4th amendment barrier?
It's a ruling that smells entirely like it would get overturned rapidly. The judge doesn't appear to like the idea of this data getting out, and seems to have ignored the law to get there.
[ link to this | view in chronology ]
Re:
Let me give you one example in my experience. I worked for a government contractor that was involved in operating a fleet of ISR (Intelligence, Surveillance, and Reconnaissance) assets. My responsibility was supporting the IT needs of the group as they operated world wide.
Through the course of any given day I would learn the location, status, and activities of the assets and often this included mission profiles as well. No piece of information was classified in any way. I however had to hold a Top Secret clearance for my job, simply because I was one of the few people that had the ability to correlate this loose conglomeration of information into an operational picture.
The government relies on doctrines of OPSEC (Operations Security) and INFOSEC (Information Security) to protect sensitive information. They believe that individual pieces of information are not necessarily important, but when aggregated are classified and treated with much higher levels of scrutiny.
It is my belief that the government should apply the same standard (one of their own) to tracking users with a cell phone.
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
Faith
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Just so everyone knows, you can turn off the GPS feature in your phone if you desire. If you do that, I bet the government would have a harder time arguing you willingly gave up your location to your phone company.
More than likely they will just ignore it and use cell phone signal strength to estimate your location and save that instead, but it certainly is one small thing you can do to protest.
[ link to this | view in chronology ]
I can't turn it off completely..... (Re:)
So while I believe that you may be able to tell your phone not to let other programs use it, you can't _disable_ it completely.
[ link to this | view in chronology ]
Re: I can't turn it off completely..... (Re:)
I did a little more research. I was right, at least in Germany. There, your cell phone company pings your phone once every 7 seconds and is continually refining its algorithms so it can track you better.
I have no reason to doubt that it's happening here too.
I tried to post a link in an earlier post, but techdirt didn't like my post. It was a NYTimes article if anyone wishes to Google it.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
turd in your pocket? Next up is third person.
/alljokes
[ link to this | view in chronology ]
Ignorance.
I'm probably missing something here. Please enlighten me.
[ link to this | view in chronology ]
Re: Ignorance.
During the 1980's Cell phone companies were ordered to collect this information so it would be available for the mobile 911 service. they didn't want to do it at the time, claiming the cost was prohibitive.
Now that they have all this information, they've discovered a commercial value in it, so they are storing it for use in things like targeted advertising.
The government has now discovered that this huge store of tracking information exists, and now wants to be able to use it without oversight.
[ link to this | view in chronology ]
No, problem is still 3rd party -- corporations -- having the data.
As Nina Paley wrote: commerce is BAD. She just doesn't grasp that's true, thinks that corporations "give" people benefits, aren't in cahoots with gov't...
[ link to this | view in chronology ]
Re: No, problem is still 3rd party -- corporations -- having the data.
That's like saying "bricks are bad because bricks are used to smash peoples' faces, and to build prisons."
Bricks are neither good nor evil, just an enabling device for aiding in the accomplishing of certain things.
Also, commerce is neither good nor evil, just an enabling device for aiding in the accomplishing of certain things.
As it has always been, it is who is using it for what.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Not a big victory
[ link to this | view in chronology ]
Re: Not a big victory
[ link to this | view in chronology ]
Re: Not a big victory
[ link to this | view in chronology ]
Good Move
[ link to this | view in chronology ]
https://www.nytimes.com/2011/03/26/business/media/26privacy.html
[ link to this | view in chronology ]
Until I can, I think I have a more than fair expectation of privacy.
[ link to this | view in chronology ]
As far I know, the cell phones my parents had didn't have any GPS and if you called 911, it only triangulated your position by which cell tower you were nearest to.
Of course I expect that most people today would classify having to use a non-smart phone as akin to having to rip out their own liver...
[ link to this | view in chronology ]
Re:
Also, as I stated earlier they are tracking you via signal strength, not just via GPS so it won't work anyway.
[ link to this | view in chronology ]
Re: Re:
I never mentioned e911. In any case it's not an issue for my parents as they've been gone for a few years now.
Also, as I stated earlier they are tracking you via signal strength, not just via GPS so it won't work anyway.
I actually don't even have a cell phone now. I used to use my mother's phone, but I didn't use it enough to make it worth paying the monthly fee. It was a much older model that didn't have a camera or even a color screen. In fact, I'm not even sure if it could accept texts. As far as I know, when you turned it off, it was off and couldn't be remotely accessed. It didn't have any user-accessible GPS features. The one time it was used to call 911, an ambulance was sent from a hospital a couple towns away rather than the one that's 5 minutes down the road.
[ link to this | view in chronology ]
Re: Re: Re:
Sorry, my mistake.
from the fcc website:
It looks like it's up to the provider.
[ link to this | view in chronology ]
Mobile Phone Tracking and Bugging
Likewise, the police or security services can quietly turn on the phone's microphone, without your knowledge or consent. Your phone will record audio for as long as they want. Turning it "off" will not make the slightest difference.
Your defenses are: (1) take out the battery, (2) put the phone in a radio-shielded box or (3) keep the phone far away from you. Having just a landline, with no mobile phone at all, is nice.
[ link to this | view in chronology ]