Surprise: Federal Court Says Warrant Needed For Mobile Phone Location Info

from the didn't-see-that-coming dept

Wed, Aug 24th 2011 8:58am — Mike Masnick

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.

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Filed Under: 4th amendment, location data, mobile phone, privacy, third party doctrine, warrants

26 Comments

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Anonymous Coward, 24 Aug 2011 @ 9:24am

"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."

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.
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:Lobo Santo (profile), 24 Aug 2011 @ 9:25am

Faith
I've a good friend who swear up-and-down the American system of government works. It's things like this that make me think maybe he isn't crazy.
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Loki, 24 Aug 2011 @ 9:36am

I can assure you that a rather large percentage of the population is not even aware this sort of tracking can be done. Many of them aren't even aware of how to do more than make or receive phone calls (which is all they have a portable phone for). The idea someone can willingly consent to something they know nothing about is silly. Most people, if offered the option to turn the feature off, would likely do so.
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A Guy, 24 Aug 2011 @ 9:36am

Seriously, the fact that some people in power still think like this makes me prouder of my country in general.

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.
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Irving, 24 Aug 2011 @ 9:36am

Sounds like a judge didn't receive his fee.
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Anonymous Coward, 24 Aug 2011 @ 9:37am

... and we hope that other courts will follow. However, we fear....

turd in your pocket? Next up is third person.

/alljokes
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The Infamous Joe (profile), 24 Aug 2011 @ 9:43am

Ignorance.
I have to admit, I had *no* idea cell companies were collecting this data. Of course, I knew they could tell my location at any given time, but what is the reasoning behind storing were I've been in the past? I don't understand how this information is needed to make sure I can get a phone call.

I'm probably missing something here. Please enlighten me.
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out_of_the_blue, 24 Aug 2011 @ 9:58am

No, problem is still 3rd party -- corporations -- having the data.
They don't need it; they want it for exactly this purpose. This won't change anything; financial motives push them.
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...
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:Lobo Santo (profile), 24 Aug 2011 @ 10:02am

Re: No, problem is still 3rd party -- corporations -- having the data.
Nay, inconsistent logic.

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.
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deane (profile), 24 Aug 2011 @ 10:05am

I wonder what would happen if in the cell phone contract that the provider would forward ALL such requests for location based data to the subscriber? would the government then not request that information?
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Chris-Mouse (profile), 24 Aug 2011 @ 10:17am

Re: Ignorance.
I have to admit, I had *no* idea cell companies were collecting this data. Of course, I knew they could tell my location at any given time, but what is the reasoning behind storing were I've been in the past? I don't understand how this information is needed to make sure I can get a phone call.

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.
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Jeffrey S. Laing, 24 Aug 2011 @ 10:52am

Not a big victory
Here in California the police can download the entire contents of your smartphone with no warrant. It seems to me that they could do this and recover cached geolocation data to accomplish the same feat.
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A Guy, 24 Aug 2011 @ 11:11am

Re: Not a big victory
Encrypt it. Wipe it remotely when they take it out of sheer principle. I bet it's even possible to disable the phone's ports and then re-enable them when you want to use it, so they cannot even access the information stored internally without the password, but that discussion is better left to a phone modder site.
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A Guy, 24 Aug 2011 @ 11:12am

Re: Not a big victory
... and most importantly, vote your douche bag politicians out of office until you get someone that actually cares about your rights
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Pete Love, 24 Aug 2011 @ 11:17am

Good Move
This is a good ruling. Big Brother is getting into our lives too much and he is becoming intrusive.
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A Guy, 24 Aug 2011 @ 11:36am

interesting read
https://www.nytimes.com/2011/03/26/business/media/26privacy.html
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NotMyRealName (profile), 24 Aug 2011 @ 12:32pm

Can I call up Verizon and ask for all my neighbor's geo-data and actually receive it? Could I ask for his current point only and get that?

Until I can, I think I have a more than fair expectation of privacy.
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jilocasin (profile), 24 Aug 2011 @ 12:50pm

I can't turn it off completely..... (Re:)
I'm not sure about all cell phones, but every one I've seen only allows you to disable GPS to the level of "E911 Only".

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.
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Anonymous Coward, 24 Aug 2011 @ 2:00pm

Re:
Yes there are cases where a collection of single points warrants a higher standard of protection.

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.
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A Guy (profile), 24 Aug 2011 @ 2:45pm

Re: I can't turn it off completely..... (Re:)
I really depends on your phone. With some rooted or hacked devices you can disable the GPS drivers. I think e911 GPS is a good service, so I won't be doing that even if I have the technical ability.

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.
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Rekrul, 24 Aug 2011 @ 3:34pm

Can you still use one of the older cell phones? I mean one of the ones that can't be remotely turned on and controlled by the cell provider.

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...
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A Guy (profile), 24 Aug 2011 @ 4:13pm

Re:
Disabling e911 is a bad idea. What if you or your parents get hurt, perhaps in a car accident, and need to call 911?

Also, as I stated earlier they are tracking you via signal strength, not just via GPS so it won't work anyway.
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Rekrul, 24 Aug 2011 @ 6:33pm

Re: Re:
Disabling e911 is a bad idea. What if you or your parents get hurt, perhaps in a car accident, and need to call 911?

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.
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A Guy (profile), 24 Aug 2011 @ 7:11pm

Re: 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.

Sorry, my mistake.

from the fcc website:

Some providers may choose to prevent reactivation of older handsets that do not have E911 capability, or they may adopt various other measures.

If a provider declines to reactivate a handset that is not location-capable, the FCC still requires the provider to deliver a 911 call from that handset to the appropriate PSAP.

It looks like it's up to the provider.
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Anonymous Coward, 24 Aug 2011 @ 8:49pm

Re: Re:
While you are correct, do you honestly think that cell phone location data matches up to state secrets or involved the safety of government agents? I think not.
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Anonymous Coward, 24 Aug 2011 @ 10:36pm

Mobile Phone Tracking and Bugging
If you carry a mobile phone, you are being tracked. Phone companies keep that data for their own purposes. If you think any police or security service cannot get that data anytime it pleases, you are dreaming. They do not need to worry about things like warrants except when they have a security breach and it somehow gets out that they have got the data. That does not happen much. If you think they are going to take the slightest notice of any court ruling restricting their actions, you are still dreaming.

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.
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