DOJ Leans On Old Laws And Even Older Cases To Argue Against Privacy Expectations In Cell Site Location Data
from the it's-1979-all-over-again! dept
Last month, AT&T entered an amicus brief in the US v. Quartavious Davis case, arguing that law enforcement shouldn't be allowed warrantless access to cell site location data. AT&T's entry into the privacy battle comes after a lengthy silence during which it was very obliging of government requests for customers' data. The crux of its argument was this:Nothing in those [prior court] decisions contemplated, much less required, a legal regime that forces individuals to choose between maintaining their privacy and participating in the emerging social, political, and economic world facilitated by the use of today's mobile devices or other location-based services."That's where we are, as far as private citizens are concerned. The government, through its thorough exploitation of the Third Party Doctrine, has basically forced the public to choose between allowing warrantless access to tons of their data (and metadata) or living some sort of off-the-grid lifestyle that doesn't involve generating "business records" via cell phone, internet service, etc.
Some judges and justices have noted that today's connected world would be completely unrecognizable to the judges who made the decisions the government relies so heavily on: namely, Smith vs. Maryland (1979).
The DOJ has entered its brief [pdf link] for the Eleventh Circuit Court's en banc re-hearing of US vs. Davis (2014), and it again attacks the defendant's assertion that he has an expectation of privacy in his cell phone records. While the government does make a good point that it's difficult for Davis to claim privacy expectations in a phone he refused to admit was his, it goes on to attack the premise that anyone has any expectation of privacy in their cell phone records. (All emphasis the DOJ's.)
Davis may not make out a right to be secure in someone else’s “papers,” see U.S. Const. amend. IV, by complaining that those papers contained “his location data.” Evidence lawfully in the possession of a third party is not his, even if it has to do with him. Indeed, so far as the Fourth Amendment is concerned, Davis could not have prevented MetroPCS from producing the records in question even if they were his.Here, the government argues that the records you generate by using a cell phone are not yours, nor will they ever be. They belong solely to the company that retains them and, as such, can be obtained with a minimum of paperwork or effort. It expands a bit on this argument a little later in the brief, but the underlying assertion is clear. These records are yours in the fact that they can identify you, but they are not yours should you seek to control access to them.
Certainly Davis could not have prevented the provider from turning over the records, but that skirts some of the issues with this case. AT&T argued that the information it collected was sensitive enough that it should require a warrant to obtain. The government could still obtain these records (as it argues here), but it would need to reach the slightly-higher bar of "probable cause," rather than a court order or a subpoena.
The government leans on the nearly 40-year-old Smith decision as a prelude to its longer dismissal of any additional privacy expectations.
In general, courts have held that phone customers could not have maintained an actual expectation of privacy in routing-related business records made by a phone company to document transactions to which it was a party. See Smith, 442 U.S. at 741-43, 99 S.Ct. at 2580-82; United States v. Gallo, 123 F.2d 229, 231 (2d Cir. 1941). There is no cause to take a different view as to cell tower records.The DOJ may say that cell phone records are pretty much the same as they've always been, but the dates of the cases cited don't bear this out. One decision is 35 years old. The other is 73 years old. Phone records used to be limited to phone numbers only. Now, they carry additional data, including location -- something that definitely wasn't on the courts' radar 40-70 years ago.
The DOJ then nails the point home, indicting US citizens as complicit in the removal of privacy expectations.
At any rate, Davis is not in a good position to complain that the government improperly obtained “his location data,” since he himself exposed and revealed to MetroPCS the very information he now seeks to keep private—i.e., the general vicinity information circumstantially inferable from cell tower records"Exposed" and "revealed" are pretty harsh terms for something citizens are forced to give up in order to use cell phones. Without a doubt, many would like to keep this information private, but are unable to do so because even though they generate the records, they ultimately have no control over their distribution. Not only that, but they have considerably less access to records they've generated than law enforcement agencies do. The Third Party Doctrine has managed to turn the American public into handy little data generators -- data that the government can avail itself of with nothing more than a subpoena.
The government further asserts that Davis' stated "ignorance" of the fact that cell providers collect and store location data gives him no reason to claim an expectation of privacy. And this is true. Ignorance isn't a worthwhile excuse. But many of us do know providers store this information and yet, there's nothing that can be done about it other than to forgo the use of a cell phone altogether. That's almost an impossibility in this world, but the government maintains the stance that all of this is optional -- that we willingly create a wealth of data for third parties that can be accessed by law enforcement with minimal paperwork, let alone oversight. These are records we have no control over and yet the government is willing to use these against us while pretending we somehow have a choice in the matter.
Notably, the government also leans heavily on the Stored Communications Act to bolster its arguments -- a 30-year-old law that still treats email over 180 days old as not worthy of a warrant. Again, times have changed but applicable decisions and laws haven't. As it stands now, your life -- as stored by third parties -- is an open book.
This isn't a great test case for privacy expectations in cell phone records. Davis refused to admit ownership of the phone linking him to the string of robberies, taking a lot of the wind out of his Fourth Amendment sails in the progress. Like the Dread Pirate Roberts/Silk Road case, the government has used the denial of ownership to undercut Fourth Amendment concerns (Ulbricht has denied the servers infiltrated by the FBI are his). Defendants are basically being put in the position of incriminating themselves or abandoning any privacy arguments -- an unenviable position.
But the fact remains that location data can reveal far more about a person than the government is willing to admit. It's not simply a "business record." It's a roadmap to a person's connected existence. There should be an expectation of privacy, especially when the data gathered covers a span of days or weeks. But so far, the laws and the courts back up the government's third party assertions.
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: doj, location data, privacy, quartavious davis, smith v. maryland, third party doctrine, warrantless information
Companies: at&t
Reader Comments
The First Word
“Re: 3rd Party Doctrine...
sez:If a woman sleeps with anyone, then the 3rd Party Doctrine allows any govt official to sleep with her, too.
Subscribe: RSS
View by: Time | Thread
Why don't we simply ask the public what they expect
IANAL, but I'm guessing this wouldn't necessarily be admissible, and it probably wouldn't trump law. But it would be a hell of a lot more honest than what the DOJ is doing here. If the DOJ is going to rape the public, they should at least show the most basal respect; don't blame the victim and claim that they consented.
[ link to this | view in thread ]
Not so fast
Maybe not, but it doesn't make it freely available without a warrant. Ever hear of HIPAA?
[ link to this | view in thread ]
[ link to this | view in thread ]
3rd Party Doctrine...
The governments power to regulate never provided a loop hole to access any damn thing they want.
This is the biggest failure of the Education System and the Electorate at large. A spade is a spade.... no matter what linguistic legerdemain is used to blur its appearance.
Yes, that means that the vast majority of you are ignorant idiots... I was once as well... wake up and stop voting in these R & D idiots that treat you like the idiots that you are!
[ link to this | view in thread ]
Re: Not so fast
[ link to this | view in thread ]
Re: 3rd Party Doctrine...
If a woman sleeps with anyone, then the 3rd Party Doctrine allows any govt official to sleep with her, too.
[ link to this | view in thread ]
So, for example:
"Davis is not in a good position to complain that the *US Deputy Marshalls service* improperly obtained “his location data,” since he himself exposed and revealed to *the stablehand* the very information he now seeks to keep private—i.e., the general vicinity information circumstantially inferable from *the stablehand's records that he did arrive at the Inn's stable at 2am, that his horse was provided with 1 nosebag of feed at 2.10 am plus one drink of water, and that he did ride away at 2.30am*
[ link to this | view in thread ]
Fundamentally immoral
[ link to this | view in thread ]
[ link to this | view in thread ]
Re:
..then they've found a bunch of suckers to buy it. Those other nations are 'tapping the backbones' too, especially the other Five Eyes and Germany and the usual suspects and whoever else intercepts subsea cables and optical splitters. I can only imagine the US data is filled with misdirections, like spies do every day of the week.
[ link to this | view in thread ]
Eric Holder will be out soon!
Seems to me, Law and Order needed a court order to get phone records. A court order is needed to get a pen and trace order (unless you are using a Stingray.)
Cell phone data may not have the expectation of privacy in such that we (the users) know they are confidential. It's a necessary part of the service, but they do not become records that can be requested trivially without a court order.
[ link to this | view in thread ]
[ link to this | view in thread ]
3rd party doctrine + immunity
[ link to this | view in thread ]
That being said, if I'm going to commit a planned crime, I'm not going to be carrying a tracking device with me.
[ link to this | view in thread ]
sheeple erode expecation of privacy through sms text and [google] privacy rape "business" models
expectation of privacy - group think = magical thinking victory
[ link to this | view in thread ]
Carry your personal nsa everywhere up to then?
[ link to this | view in thread ]
Re:
pissing into the wind is not as efficacious as some might suggest
[ link to this | view in thread ]
Uncle Joe is jealous
[ link to this | view in thread ]
"Green party politician Malte Spitz sued to have German telecoms giant Deutsche Telekom hand over six months of his phone data that he then made available to ZEIT ONLINE."
"By pushing the play button, you will set off on a trip through Malte Spitz's life. The speed controller allows you to adjust how fast you travel [through his life], the pause button will let you stop at interesting points."
Warning: Javascript required for Google Maps to work!
http://www.zeit.de/datenschutz/malte-spitz-data-retention
A little icon even pops up on Google Maps showing where and when Mr. Spitz made all his phone calls.
All it takes is a subpena or a hacker, in order to replay the past 5 years of your life. Moment by moment on Google Maps.
What pisses me off is there's no reason for retaining logs past what's needed for billing purposes. These half decade old logs, available to law enforcement, or hackers, without a warrant or probable cause. Is what makes this a human rights violation where everyone's being tagged and tracked like wildlife.
[ link to this | view in thread ]
wearing your cake and being eaten too
[ link to this | view in thread ]
There are issues implementing this but we need reboots instead of patches at times. And update is a must when it comes to technology.
[ link to this | view in thread ]
Re:
[ link to this | view in thread ]
data collection
In the data category, I can view the time and quantity on my bill for my usage. That seems useful, and I can manually compare that with application usage records on my phone to see which application is hogging the bandwidth. No problems here.
But for the voice and text categories, I can view the number for every call or message. I don't need this information, and frankly, I don't see why the wireless company needs it. Sure, capture the total talk time and the total number of messages, but I really don't care to ever see the connection information.
The wireless company may state that they need certain data to accurately model their rate structures, but I suspect they could just as effectively set their rates using random samples of anonymized data plus the larger sets of conglomerate data. Surely they'd save money in several places, especially when printing and mailing my monthly bill (yeah, I'm a dinosaur who wants a paper bill, but I still don't need to be silly wasteful about getting a huge pile of papers that just gets immediately fed to the shredder).
Further, the same logic applies to all the other data they seem to collect, such as which cell towers my phone pings and any other location data shared by my phone. It's not needed for billing me, and they could evaluate tower operations just fine without being able to trace every ping and call back to a specific phone. The irony is that if I ever wanted to view that data about my own devices, I'd probably need to submit more paperwork than they require from the cops.
Already, the popularity is increasing among email services that offer increased privacy. When will I be able to pay a few bucks more (because, of course!) so that my phone company won't regularly store any more data than what is truly needed for billing purposes?
[ link to this | view in thread ]
Blame the phone company, not the government
[ link to this | view in thread ]