Debate Club: Should Police Need A Warrant To Get Your Location From Your Mobile Phone Provider?
from the debate-it-up dept
US News runs some online debates, in which they bring together a bunch of experts to debate a particular topic of interest, allowing readers to vote on which arguments they agree with most. This week, they're debating if police should need to prove probable cause in order to get a warrant to get your mobile phone location (and potentially track you). There's a great opening argument from Senator Ron Wyden, who worries about the possibility for abuse:While having access to geolocation data is clearly useful for law enforcement agencies, without the resource limitations that used to discourage the government from tracking you without good reason, the limits on when and how geolocation data can be accessed are unclear. A police department, for example, might not have the resources to follow everyone who lives within a city block for a month, but without clear rules for electronic tracking there is nothing to stop it from requesting every resident's cellphone location history.Also on his side (in this debate) is Rep. Jason Chaffetz, who makes a straightforward 4th Amendment argument, the ACLU's Catherine Crump, who not surprisingly focuses on the privacy arguments and Jennifer Granick from the Center for Internet and Society talking about how the lack of a warrant requirement leaves the system wide open to abuse by law enforcement.
Obviously, we expect people to see us when we step out onto the street each morning, but we don't expect those people to track all of our movements over the course of days, weeks, months, or even years.
Who can possibly argue against all that? Well, there's Joseph Cassilly, who had been the president of the National District Attorney's association. His basic argument is that having easy access to this data makes the job of law enforcement easier:
A recent example of this was in a gang shooting in my jurisdiction wherein an anonymous caller who feared gang retaliation if his identity was known gave the police the identity of two gang members who committed the murder. The police received cell phone information regarding these individuals from prior arrest reports. The cell-site historical information for the time of the killing shows that those two cell phones were hitting off the same tower at the same time in the area of the murder.Nice story, but there is nothing in the Constitution that says we need to make law enforcement's job easier. In fact, it's the opposite. The reason we have a 4th Amendment is to make law enforcement's job more difficult. But that's a choice we make as a free society, recognizing that protecting our civil liberties and freedoms is an important barrier to inevitable law enforcement abuse.
Also in favor of easier spying on people is Rep. Trey Gowdy, who seems to argue that using your GPS data to track you is no different than other "advancements" like "DNA analysis, fingerprint analysis, voice exemplars, blood spatter, or court-approved wiretapping." Gowdy is a bit more middle-ground here, suggesting the importance of privacy, but saying he thinks that location data should require a "lower standard" for a warrant than probable cause. Of course, the problem there is that the whole "probable cause" bit comes to us from The Constitution. So, changing that is difficult.
Either way, you can check out the full arguments and vote for which ones you find most compelling...
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Filed Under: aclu, debate, geolocation, jason chaffetz, joseph cassilly, mobile phone, police, trey gowdy
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"wherein an anonymous caller who feared gang retaliation if his identity was known gave the police the identity of two gang members who committed the murder."
While I am not a lawyer, and don't know if that strictly fits the probable cause definition alone, a credible anonymous tip seems to fit a reasonable suspicion that could be spelled out in a warrant for that information. If that isn't quite enough, then add the anonymous tip to some other information about the suspects - you know, just the kind of thing the police are supposed to do when building a case - and get your warrant that way.
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Just like an IP...
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Yes, next?
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It's not up to debate if you think about it, they must get a warrant before tracking any1.
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Cell Phone = Me??
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Rephrase
It doesn't change the answer, for me, but it might for some people who are on the fence. I still think any time the police require information from a third party, that party should have the ability to say "No" unless the police have a warrant.
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Par for his course
And sadly last year he was the only one on the ballot.
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As usual
The worst thing about this is it distracts police into harassing the (relatively) innocent whilst the real bad guys are unaffected.
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Of course law enforcement should be easy, that way any Monkey can do it....
think of all the money we'd save in not having to train anyone any longer, why is everyone for spending so many Tax dollars, sheesh..
/possible Bob contagion
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The the location information they are requesting from the carrier would be far more reliable than an IP address. Carriers location data is required by law to be accurate to within certain parameters by the FCC for 911 purposes.
Also, this is cell tower data, which you can bet your ass is accurate. the only way it wouldn't be is if the carrier manipulated it, which would be easily apparent.
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Electronic leash
I'd never own a car with Onstar for similar reasons.
There are times I do wish I had a cell phone, but it 2 or 3 times a year for a minute or 2. Hardly enough to give up privacy on that scale, not to mention the expense.
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Boom; debated.
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For example, if you call 9-1-1 but are seriously injured or incapacitated, they should be able to use your mobile phone to determine your location.
That being said, I think this should be severely limited (only to be used during emergent crises; only to be used on a phone that has recently dialed 9-1-1 or other emergency line; etc)
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This is specifically in reference to investigating possible crimes, not emergency situations.
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The information that this article referred to is location derived from cell tower data, which is usually less accurate, but can still be useful (if you can see which towers a phone call used, you can get a pretty good idea of the course the phone traveled).
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911
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Re: 911
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Oh wait didn't the founders establish the Bill of Rights expressly because of the abuses by the police and military of King George.
We all ready have so many laws on the books that everyone is guilty of something each and every day.
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If you have nothing to hide...
It's this reality that tyrants and wannabe tyrants exploit to the maximum to control their populations or those who they are in contact with. Police agencies, sadly, fall into this as do some of their "supporters". Why bother with warrants when just doing it is easier? And it could be a bother to find a compliant JP in the middle of the night to grant that warrant, you know. They just get in the way. It's easier to hack into "the baddies" smart phone and grab the data that way.
J Edgar Hoover operated that way and struck the fear of God into low level crooks all the way up to the White House as one of the results. Joe McCarthy did much the same.
Requirements such as probably cause and the actual obtaining of a warrant is designed to lessen the chance that police can abuse their considerable power. It's all in the aid of preventing police from crashing down doors in the middle of the night for no reason or cause. All of which still happens even with all the safeguards in place.
Just as importantly it stops lazy police work. That they have to justify the need for a warrant in front of what is hoped to be a legally disinterested 3rd party may have the effect of them doing their homework.
Warrantless tracking of a person via their smart phone's GPS should be done, it at all, in only the most extraordinary circumstances. Government and, by extention, police, shouldn't have and don't need cart blanche to know where we are at every moment of the day and night no matter how much they may think they need it and should only get it in specific circumstances for specific purposes.
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BUT! It's really important to consider where the two main sides of this debate really stand. Wyden, Chaffetz, and many others are arguing that obtaining location data from cell phone providers should require a search warrant based on probable cause, regardless of whether police are just trying to get records that the cell phone provider keeps anyway. In other words, they don't seem to distinguish between the scenario where police actively try to track a person in real time by peeking at the GPS data being generated by a person's cell phone, or some hidden app planted on the phone, and the scenario where police just want records from a cell phone provider about which tower a particular phone used in the past. I think the latter category is much less intrusive, and generally speaking, the law lets police obtain records held by third parties more easily than engaging in a more direct search.
The alternative to requiring a search warrant for these third party cell tower records isn't to let police get them any time they feel like it. It's to require them to go get a court order, but something that's less complicated and time consuming than an all out search warrant. That's what police are required to do in most places under existing law. So the difference between what Ron Wyden wants and what Trey Gowdy wants really boils down to whether, when police go into court, they need to spell out in a 20-page affidavit why there's probable cause to believe the data they seek is relevant to their criminal case, or whether they can articulate in a page or two some specific facts indicating that it's relevant. Either way, a court has to look at the application (and a judge can ask questions about it) and then has to sign off on it before police get to serve it on the cell phone provider.
It's nice that US News is hosting a debate on this issue, but it would be far better if there could be a real debate, where the participants talked about what the alternatives were. Pounding the table about privacy and the Fourth Amendment on the one hand, and the horrible threats of dope dealers and cop killers and terrorists on the other, is all well and good. But it's not very elucidating for the rest of us.
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In theory, I'd be OK with this, but I have severe reservations. I could see it easily becoming like the FISA court: pretended oversight that still allows law enforcement to engage in widespread abuse, only with a court's blessing.
In my opinion, law enforcement has become oppressive enough that it is in society's best interest to make things generally as difficult as possible for them.
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I'm guessing that one could come up with some scenarios, and there might be some that have actually occurred, but if you're really dead set on requiring warrants, it's good to try to figure out how much of a difference they make in practice. And by the same token, if one is dead set against requiring warrants, it's helpful to try to figure out how much extra time and effort it takes to get a warrant, instead of some other kind of court order.
I think Mike, like Ninja below, underestimates the time and effort required to actually get a search warrant. Judges may be willing to quickly approve warrants on the phone for searching property that's been secured temporarily, but I don't think that's the norm. And if judges are doing quickie warrants on the phone, I'm even less convinced that that sort of procedure is so much better than requiring a court order that's not quite as powerful as a search warrant.
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Lets say your mother is gang raped and for whatever reason the police could catch them by using cell phone data and they needed to find them now or all of the evidence would be destroyed. Would you still stand on your perch and defend the rapers right to privacy? Would you still say they had to go through the red tape of getting a warrant?
Extreme case, I understand, however it only takes one to make it worth while in my book.
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Nice appeal to emotion, rather than logic.
Simple question: what does any of this have to do with getting a warrant? Getting a warrant is not a difficult process. Suggesting it's "red tape" shows little knowledge of how easy it is to get a warrant. And, in cases where there's imminent risk or danger of evidence being destroyed there already *is* a process, that allows them to get the data and retroactively get a warrant. So, there is no reason that a warrant can't be sought in this case too.
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What amuses me is that his way of thinking shows the same logic that makes ppl assume we need further legislation for online crimes when they are already traceable and punishable by our current laws. They are thinking with some part of their body other than their brain. Possibly their intestines.
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I don't understand this concern either, as there is already exigent circumstances, but also because the phone doesn't belong to the person who currently possesses it, and therefore has no right to privacy with it. I can call my phone company and tell them that I have a police report for my stolen phone, and they can contact the police department with the current location of the phone without a warrant.
There is no reason, beyond evidence being in plain sight and exigent circumstances, why a warrant should never not be required. And a warrant should be required to obtain location information from a phone as much as it should be required for a police officer to search a phone.
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Yes, I would stand on my perch and defend their right to due process, and privacy against unreasonable searches.
Why? Because that situation is so easy to turn around right back at you.
You're at a party. You leave the party early, but have dropped your phone, which remains behind. The aforementioned rape happens after you leave.
Would you expect the police to do their jobs and investigate, following due process, or should they accuse you of rape after they've pulled the phone records they got without any other evidence?
Let me be clear: I have no problems with police using phone location data, provided they are using it responsibly, following due process, and using it as one piece of evidence among many that point to the same conclusion.
Extreme case, I understand, however it only takes one to make it worth while in my book.
Exactly the way I feel. Even one case of an innocent person being convicted of a crime they did not commit is too much.
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That's easy. Yes.
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Well...
Here is the easy fix. Lets just put GPS locator anklets on EVERYONE. With that we can also add bluetooth connectivity and then you must pair your anklet to your car to drive; a computer, to gain use; a door to open; to buy anything...
While we are at it we can run a wire under your skin, up your leg, torso and neck and mount a third eye above the two you come equipped with. If covered you will be shocked. The images will be transmitted to datacenters and stored for 2 lifetimes and be the IP of .GOV, made available to any government entity freely, but if you want to see any portion of your data you will need to pay $1M per meg. Oh, may as well record and store the audio too.
Of course this is all for the safety of the children and the protection of IP owned by those poor mistreated RIAA and MPAA members.
I own the IP (Copyright, Patents, and Trademark) for all of the above. So when the Government is ready to implement please see me. I am thinking a cost of $1,000,000,000,000 per user (non transferable). I retain all rights to hardware, software and anyone wearing my device or accessing data from the device, or seen or heard on the device. I also retain rights to anyone who has never heard of, seen or worn my device.
OR we could just use common sense, but that seems to be not so common anymore.
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Re: Well... Oops
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Tracking must be made to require a warrant.
If you have excuses you're not worthy of the positions we allow you to hold.
We're creating a monster. If we don't kill it soon it will get bigger. The future is coming.
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Hugely lopsided voting
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