Judge Protects Cellphone Data On 4th Amendment Grounds, Cites Government's Technological Ignorance

from the they're-RIGHTS,-not-INCONVENIENCES dept

Fri, Oct 26th 2012 5:26am — Tim Cushing

Various US government agencies have spent a lot of time and energy hoping to ensnare as much cell phone data as possible without having to deal with the "barriers" erected by the Fourth Amendment. The feds, along with Los Angeles law enforcement agencies, have bypassed the protections of the Fourth Amendment by deploying roving cell phone trackers that mimic mobile phone towers. The FISA Amendments Act has been used as a "blank check" for wholesale spying on Americans and has been abused often enough that the Director of National Intelligence was forced to admit these Fourth Amendment violations publicly.

The good news is that a few of these overreaches are receiving judicial pushback. Orin Kerr at the Volokh Conspiracy has a very brief writeup of a recent shutdown of another cellphone-related fishing expedition led by an assistant US Attorney. An attempt was made to acquire records for ALL cell phones utilizing four different towers in the area of a specific crime at the time of the event. As Kerr notes, this ruling refers to the Fifth Circuit court decision that found cell phone data to be protected under the Fourth Amendment, thus requiring a warrant to access it.

Magistrate Judge Smith points out that part of the issue is that the principals involved (the assistant US Attorney and a special agent) seemed to lack essential knowledge of the underlying technology, and that this lack of knowledge prevented them from recognizing the overreach of their request:

Moreover, it is problematic that neither the assistant United States Attorney nor the special agent truly understood the technology involved in the requested applications. See In re the Application of the U.S. for an Order Authorizing the Installation and Use of a Pen Register and Trap and Trace Device, ––– F.Supp.2d ––––, 2012 WL 2120492, at *2 (S.D. Tex. June 2, 2012). Without such an understanding, they cannot appreciate the constitutional implications of their requests. They are essentially asking for a warrant in support of a very broad and invasive search affecting likely hundreds of individuals in violation of the Fourth Amendment.

There has been a lot of discussion here at Techdirt regarding the incredible lack of knowledge present in those seeking to regulate or exploit various technologies. Considering the amount of possible collateral damage and the heightened chance of rights violations, you'd think these entities would be exercising maximum caution before tampering with something they don't understand. Instead, the common approach is to use the ends (safety, crime prevention, etc.) to justify the missteps and rights-trampling of the means, leaving the judicial system and various trampled citizens to sort out the mess.

Judge Smith quotes the Fourth Amendment and points out that warrants must be issued and only "upon probable cause" before continuing to run down the list of wrongs in this request.

Finally, there is no discussion about what the Government intends to do with all of the data related to innocent people who are not the target of the criminal investigation. In one criminal investigation, the Government received the names, cell phone numbers, and subscriber information of 179 innocent individuals. See United States v. Soto, No. 3:09CR200 (D.Conn. May 18, 2010) (Memorandum in Support of Motion to Suppress). Although the use of a court-sanctioned cell tower dump invariably leads to such information being provided to the Government, in order to receive such data, the Government at a minimum should have a protocol to address how to handle this sensitive private information.

But, as Smith points out, the government doesn't have a protocol in place, even more than two years down the road.

Although this issue was raised at the hearing, the Government has not addressed it to date.

This is hardly new territory for government agencies. The TSA has had nearly 20 months to begin taking public comments on the use of various body imaging scanners, but despite two trips to the DC Circuit Court, it has yet to begin this process, something generally undertaken before implenting a new system. If it's something the government feels may be unpopular with the public, it tends to attempt to stall indefinitely, an (in)action that (again) places the burden back on the courts and the general public.

But, at least in this case, Judge Smith is using this lack of action against the government representatives.

This failure to address the privacy rights for the Fourth Amendment concerns of these innocent subscribers whose information will be compromised as a request of the cell tower dump is another factor warranting the denial of the application.

It's a good sign that stalling tactics may hurt more than help in the future. Many government and law enforcement agencies are still looking for any loophole in current laws in order to bypass the limitations placed on them by the Constitution. There's still a long way to go before there's anything resembling an equitable relationship between the general public and those in power, but we'll take everything we can get and (hopefully) receive more help pushing back against these intrusions.

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Filed Under: 4th amendment, data, wireless

23 Comments

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The Real Michael, 26 Oct 2012 @ 5:59am

An agency feigning ignorance of the Constitution, exploiting their position of authority in order to grant themselves overreaching powers. Gee, what a shock. These people are a disgrace to America.

Maybe someday in the future these same people will wake up, look out the window into the fog-covered street and watch as military humvees roll down the street, soldier-police trespass on people's property with bomb/drug-sniffing canines and drones hover in the sky. Then maybe they'll realize the harm they assisted in bringing upon this once-free nation, once they and their loved ones become surveillanced prisoners on their own property.
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out_of_the_blue, 26 Oct 2012 @ 6:17am

Now suppose they've done a similar end-around using Google.
As a commercial front. Just run that notion around and see if you think the gov't could resist a huge pile of detailed data. But even if you believe Google as such is entirely commercial, it does sell the data.
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Anonymous Coward, 26 Oct 2012 @ 6:19am

Re:
Maybe someday in the future...

You know, I always wonder why prosecutors commit Brady / Giglio violations.

The only answer I can come up with... those prosecutors hate the United States Constitution and everything it stands for.
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The Real Michael, 26 Oct 2012 @ 6:21am

Re: Now suppose they've done a similar end-around using Google.
This may prove insightful: http://www.google-watch.org/gifs/connec5.gif
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The Real Michael, 26 Oct 2012 @ 6:25am

Re: Re:
The sad thing is that it doesn't require much of a stretch of the imagination.
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That's more like it, 26 Oct 2012 @ 6:37am

Lack of understand..... YES! That's the reason your honor, honest.
"Magistrate Judge Smith points out that part of the issue is that the principals involved (the assistant US Attorney and a special agent) seemed to lack essential knowledge of the underlying technology, and that this lack of knowledge prevented them from recognizing the overreach of their request:"

Or

They understood it perfectly and have been relying on the judges not understanding the technology to let them get away with it for long enough for it to become accepted practice.
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Anonymous Coward, 26 Oct 2012 @ 6:40am

Re: Now suppose they've done a similar end-around using Google.
This is what has always concerned me. Doesn't the ablity to buy this data on the open market pretty much negate any 4th amendment rights?

If McDonald can buy data to figure out where to put a new restaurant, then why can't the feds buy for data mining?

Very dangerous when govt. can use our tax money to steal data from us that they would otherwise have to get a warrant for.
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That Anonymous Coward (profile), 26 Oct 2012 @ 7:06am

Re: Re:
Maybe its because of the lack of punishment for doing it.
IIRC I was watching PBS and there was a special where they were discussing the Brady Rule and they listed all of the violations of it... and the lack of any discipline to those who violated it.
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Anonymous Coward, 26 Oct 2012 @ 7:18am

Many government and law enforcement agencies are still looking for any loophole in current laws in order to bypass the limitations placed on them by the Constitution.

Current law, past law, future law, it doesn't matter, the constitution trumps law in all cases. I say fire anyone that doesn't get that.
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Anonymous Coward, 26 Oct 2012 @ 7:19am

Most in government from the white house on down think the constitution is a pesky thing that you need to end run around.
Many who sight the bill of rights tend to be selective in their application of the bill of rights.
I can only think of two people in the government who I truly trust with my liberty, Ron and Rand.
This statement has no ambiguity.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
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Anonymous Coward, 26 Oct 2012 @ 7:32am

Re: Re: Re:
Maybe its because of the lack of punishment for doing it.

But why should prosecutors need punishment? And this issue of bad prosecutors goes beyond just Brady�that's why I brought it up, under this thread�which regards, in part, a prosecutor's duty of candor to the court.

This passage from Berger v United States (1935) has been oft quoted:

The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor � indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.

�Whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.�

�But that justice shall be done.�

So, given that interest, why aren't prosecutors always straight with the court? Why would a prosecutor, for instance, suborn perjury?
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Mr. Applegate, 26 Oct 2012 @ 7:42am

Re: Now suppose they've done a similar end-around using Google.
Not that I think Google's (or any) data mining isn't a problem, but...

How in this case would that help the government?

They are wanting all cell phone info from specific towers for a given time period. I don't think google has that information. Google may have what Android phones were connected to a certain tower at a given time, but that is hardly a complete list, since the entire world does not yet use android phones.

Even if Google has the data, typically, from what I know (and I am not an expert), Google sells data in aggregate. They sell ads to people that want to target 'Tech Dirt Visitors', that are male and between X and Y years old, with an income of Z, who frequent Cell Towers A, B, C, & D.

They don't typically sell info they have on say 'out_of_the_blue' or 'Mr. Applegate' to anyone, in fact I believe they have resisted giving out detailed information to the government in the past. I cite: http://en.wikipedia.org/wiki/Criticism_of_Google#Privacy_and_data_protection_cases_and_issues_by_sta te There is some other information on that page as well.

Maybe the government should buy ads from google saying "You were in this area and may have information we need, please call...."
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Mr. Applegate, 26 Oct 2012 @ 7:53am

Re: Re: Now suppose they've done a similar end-around using Google.
I agree, but perhaps, not exactly.

Google, at least to date, seems to try to prevent selling their data (accept in aggregate), and they have resisted attempts by government bodies to gain access to personally identifiable info.

However, the government is requiring more and more data to be kept by ISPs, Web Hosting services... Many of these companies have gladly turned over data without a court order. In fact these companies have routinely shared their information with other companies, again without a court order. That is a problem. Currently, at least in my mind a bigger problem than Google.

Google is in the data biz and knows if they violate the trust of the people there $$$ will dry up. ISP's and Web hosting companies on the other hand, can violate people trust and not risk their business model. So, these other companies and all the data logging are probably far more dangerous than Google, because Google has a vested interest in the data they keep on you, the other companies, Comcast, AT&T, Verizon... not so much.
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Anonymous Coward, 26 Oct 2012 @ 7:55am

ACLU / EFF amicus brief on "Stingrays"
�Stingrays: The Biggest Technological Threat to Cell Phone Privacy You Don't Know About� by Hanni Fakhoury and Trevor Timm, EFF Deeplinks, Oct 22, 2012:

On Friday, EFF and the ACLU submitted an amicus brief in United States v. Rigmaiden, a closely-followed case that has enormous consequences for individuals' Fourth Amendment rights in their home and on their cell phone.

[...more...]

Quoting from that brief

The Fourth Amendment assigns judicial officers a critical role in ensuring that all aspects of a search are supported by probable cause and are not overly intrusive. The government�s omission of material information in a warrant application prevents the court from exercising this constitutional function.

(Emphasis added; citations omitted.)
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That Anonymous Coward (profile), 26 Oct 2012 @ 8:03am

Re: Re: Re: Re:
Ask these guys?

http://usatoday30.usatoday.com/news/washington/judicial/2010-12-08-prosecutor_N.htm

It is about winning and giving the appearance of doing something.
We show how busy and successful we are, we get a better budget.
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Mr. Applegate, 26 Oct 2012 @ 8:32am

Re:
I believe the answer goes something like this:

"...the code [constitution] is more what you'd call "guidelines" than actual rules. Welcome aboard ..."

and now we know who the real pirates are. They be the ones in charge of the ship.
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Anonymous Coward, 26 Oct 2012 @ 8:47am

'the assistant US Attorney and a special agent seemed to lack essential knowledge of the underlying technology, and that this lack of knowledge prevented them from recognizing the overreach of their request'

what absolute bollocks! they knew exactly what was happening, they know all about the underlying technology, they knew full well of the overreach of their request and knew that they were, basically, breaking the law. as is getting more common today, law enforcement agencies themselves seem to think that they are above the law, can ignore any and all parts they want to but no one else is allowed that seem option!
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Shmerl, 26 Oct 2012 @ 8:55am

Apple look like fools when the loose. And they aren't used to it.
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Gregg, 26 Oct 2012 @ 11:05am

Finally a glimpse of sanity from a court.
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Anonymous Coward, 26 Oct 2012 @ 12:11pm

Re:
No, the dinosaur judges that support ignoring the constitution are the same ones especially that don't understand technology. They're too old to live to see the problems they create come to pass so they don't take the time to consider them. It's a great attitude.
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ldne, 26 Oct 2012 @ 3:30pm

Re: Re: Now suppose they've done a similar end-around using Google.
They can and do buy "anonymized" data from marketing firms, they always have, even before the internet. They just didn't have the ability to correlate that data through thousands of searchable public records and purchasable search engine data before. They don't need a warrant for that kind of data, because there is no "reasonable expectation of privacy" involved in the collection of it. I mean, you know when you swipe the "preferred shoppers" card they're collecting marketing data on you, it's in the agreement and info about the card. You do have a reasonable expectation that your personal conversations on a phone are just that though.
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Lin (profile), 26 Oct 2012 @ 8:44pm

Judges push back - Are they next?
So is the government now going to go after judges?
Are we going to see judges being deemed 'mentally deficient" and disappear or suddenly [conveniently] some trumped up sex charges by ex-CIA agents because judges are standing up for our rights???
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Hollis Sisto, 8 Aug 2013 @ 1:55pm

Great Job
Judge Smith rocks. Finally, somebody pushing back and he has the law behind him. We need more Judge's like him
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