Appeals Court Says Warrantless Phone Tracking Doesn't Violate 4th Amendment Because 'Third Party Doctrine'

from the oh-boy dept

Tue, May 5th 2015 11:26am — Mike Masnick

For about a year now, we've been following the Quartavious Davis en banc appeal case, in which Davis's lawyers were challenging the use of historical cell phone location data (not real time GPS info) that was collected without a warrant in order to convict him (technically, they used a 2703(d) order, which is a much lower standard than a warrant, which requires probable cause, rather than "specific and articulable facts that there are reasonable grounds" to believe that the info is "relevant and material to an ongoing criminal investigation"). Given the renewed interest of the Supreme Court (and other courts) in issues related to the 4th Amendment when it meets up with modern technology, this case got a lot of attention in the last few months. The 11th Circuit has now ruled and it isn't going to make 4th Amendment supporters happy. The court ruled that warrantless tracking of your mobile phone location is not an "illegal search" under the 4th Amendment... because of the old (and ridiculous) third party doctrine.

In case you've been living under a rock and not following such things, the third party doctrine basically says you have no expectation of privacy in data that third parties hold on you -- such as... phone records. This doctrine has a lot of problems (going all the way back to the Smith v. Maryland case that is generally cited in support of the doctrine). But, here, the court just runs with it. It spends a few pages restating the ruling in Smith v. Maryland, clearly agreeing with it, and then it drops the hammer:

For starters, like the bank customer in Miller and the phone customer in Smith, Davis can assert neither ownership nor possession of the third-party’s business records he sought to suppress. Instead, those cell tower records were created by MetroPCS, stored on its own premises, and subject to its control. Cell tower location records do not contain private communications of the subscriber. This type of non-content evidence, lawfully created by a third-party telephone company for legitimate business purposes, does not belong to Davis, even if it concerns him. Like the security camera surveillance images introduced into evidence at his trial, MetroPCS’s cell tower records were not Davis’s to withhold....

More importantly, like the bank customer in Miller and the phone customer in Smith, Davis has no subjective or objective reasonable expectation of privacy in MetroPCS’s business records showing the cell tower locations that wirelessly connected his calls at or near the time of six of the seven robberies.

It dives in a bit deeper on the "expectation of privacy" question and says that no one should have any expectation of privacy in their cell location data, basically saying that you should know that you're giving up such info to a third party who can give it to law enforcement:

We find no reason to conclude that cell phone users lack facts about the functions of cell towers or about telephone providers’ recording cell tower usage.

Thus, no "expectation" of privacy.

It also argues this is no different than the ruling in Smith v. Maryland, because, back then, just having the phone numbers (what that case was about) was the equivalent of also showing location, since in that pre-mobile phone era, a phone number also automatically revealed location since it was tied to an address. As for the public policy reasons why this result is pretty scary concerning the public's privacy, the court says, "Hey, take it up with Congress."

The court also distinguishes this case from the Supreme Court's ruling in US v. Jones from a few years ago, that said that attaching a GPS device to a car could violate the 4th Amendment due to it being a "trespass" (though on the side, some Justices raised concerns about the ongoing collection of location data). Basically the court here said it doesn't matter here, as there's no similar "trespass" situation with the MetroPCS data.

Two of the judges on the panel dissented, and pointed out just how crazy the third party doctrine is in this situation, and how it basically destroys the 4th Amendment:

We are asked to decide whether the government’s actions violated Mr. Davis’s Fourth Amendment rights. The majority says our analysis is dictated by the third-party doctrine, a rule the Supreme Court developed almost forty years ago in the context of bank records and telephone numbers. But such an expansive application of the third-party doctrine would allow the government warrantless access not only to where we are at any given time, but also to whom we send e-mails, our search-engine histories, our online dating and shopping records, and by logical extension, our entire online personas.

In short, those two judges rightly recognize just how problematic the third party doctrine is. In an age where all our info goes to third parties, the 4th Amendment basically goes away. Later, that same dissent notes:

The majority’s blunt application of the third party doctrine threatens to allow the government access to a staggering amount of information that surely must be protected under the Fourth Amendment. Consider the information that Google gets from users of its e-mail and online search functions. According to its website, Google collects information about you (name, e-mail address, telephone number, and credit card data); the things you do online (what videos you watch, what websites you access, and how you view and interact with advertisements); the devices you use (which particular phone or computer you are searching on); and your actual location.... Like in Miller and Smith, Google even offers a legitimate business purpose for such data storage and mining: “Our automated systems analyze your content (including emails) to provide you personally relevant product features, such as customized search results, tailored advertising, and spam and malware detection.” Id. Under a plain reading of the majority’s rule, by allowing a third-party company access to our e-mail accounts, the websites we visit, and our search-engine history—all for legitimate business purposes—we give up any privacy interest in that information.

And why stop there? Nearly every website collects information about what we do when we visit. So now, under the majority’s rule, the Fourth Amendment allows the government to know from YouTube.com what we watch, or Facebook.com what we post or whom we “friend,” or Amazon.com what we buy, or Wikipedia.com what we research, or Match.com whom we date—all without a warrant. In fact, the government could ask “cloud”-based file-sharing services like Dropbox or Apple’s iCloud for all the files we relinquish to their servers. I am convinced that most internet users would be shocked by this. But as far as I can tell, every argument the government makes in its brief regarding cell site location data applies equally well to e-mail accounts, search-engine histories, shopping-site purchases, cloud-storage files, and the like.

Either way, it's pretty clear this issue is heading to the Supreme Court sooner or later (even possibly with this very case). But, for today, this ruling is a pretty big hit against your privacy.

DAVIS CA11 20150505 (PDF)DAVIS CA11 20150505 (Text)

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Filed Under: 4th amendment, expectation of privacy, privacy, quartavious davis, sca, smith v. maryland, stored communications act, third party doctrine, warrants

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Anonymous Coward, 5 May 2015 @ 11:31am

3rd Paty Doctrine
= Smoke and Mirrors = stupid people believing stupid things = American Electorate too stupid to know a damn fucking thing!

They tried this shit back when telephones came out but there were not stupid then and they got slapped down... but we are pretty fucking stupid now.
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Anonymous Coward, 5 May 2015 @ 11:41am

Constructive consent
Right now, if your phone is turned on, then you consent to being tracked wherever you go.

Doesn't matter what the law should be. This is what the law is. You people can bitch all you want to—doesn't affect the price of tea in China.

As for me, my cell phone is turned off right now.
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Ninja (profile), 5 May 2015 @ 11:43am

And why stop there? Nearly every website collects information about what we do when we visit. So now, under the majority’s rule, the Fourth Amendment allows the government to know from YouTube.com what we watch, or Facebook.com what we post or whom we “friend,” or Amazon.com what we buy, or Wikipedia.com what we research, or Match.com whom we date—all without a warrant. In fact, the government could ask “cloud”-based file-sharing services like Dropbox or Apple’s iCloud for all the files we relinquish to their servers. I am convinced that most internet users would be shocked by this.

Transfer to the physical world. If you use a 3rd party place to store your personal belongings (while you do maintenance and modifications at home for instance) so you lose any expectation of privacy and your belongings can be searched without a warrant. Park your car in a private owned parking lot? Nailed. Plan your travel with an agency? Nailed. Give your photos to be printed? Nailed. Most people would be shocked if such things happened. But alas we added "on the internet" and logic and reasoning went out the window.

You'd need to be some sort of secluded hermit to be effectively protected by the 4th.
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Anonymous Coward, 5 May 2015 @ 11:55am

Re: Constructive consent
Not sure if this is true but I did read about this a while back.

NSA Can Reportedly Track Phones Even When They're Turned Off
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Chris Brand, 5 May 2015 @ 11:58am

Library records ?
So does the same legal standard apply to the records kept by your library about which books you borrowed, for how long, etc ?
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Anonymous Coward, 5 May 2015 @ 12:01pm

Re: Re: Constructive consent
NSA Can Reportedly Track Phones Even When They're Turned Off
If you believe there's a reasonable probability, then you should take the battery out. Or put the phone in a Faraday cage. Or both.

(Personally, I favor a Faraday cage.)
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Anonymous Coward, 5 May 2015 @ 12:07pm

Re: Library records ?
Interesting that you should mention libraries. For instance, the library I use does not keep historical records of books checked out by their users although they do offer an "opt in" to allow for historical tracking. I suspect that the default of no tracking is a direct response to not have any records that can be seized by law enforcement.
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Personanongrata, 5 May 2015 @ 12:09pm

Criminal
The Federal Court jesters comprising The US Court of Appeals for the 11th Circuit have decided that the plain english wording of the Bill of Rights is no match for their jurisprudence pretezel logic and a criminal US congress.

Rather than hold the US government to account for circumventing/ignoring the US Constitution the federal court jesters of the 11th circuit have decided to hide behind "Third Party Doctrine"

The following federal court jesters should be ashamed of themselves as they have foresworn their oaths to protect and defend the US constitution for US government political expediency:

Chief Jester - ED CARNES
Jester - Gerald Bard Tjoflat
Jester - Frank M. Hull HULL
Jester - Stanley Marcus
Jester - Charles R Wilson
Jester - William H Pryor Jr
Jester - Beverly B Martin
Jester - Adalberto Jordan
Jester - Robin S Rosenbaum
Jester - Julie E Carnes
Jester - Jill A Pryor

You people make me sick.

If you are not up to the task of honoring your oath of office then resign.
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AnonCow, 5 May 2015 @ 12:09pm

And if I hired a locksmith would Third Party Doctrine apply for the police to get keys and enter my house without a warrant since the locksmith would have the key configuration and would, technically, be able to enter my home, I would have no expectation of privacy in my home. Right?
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Anonymous Coward, 5 May 2015 @ 12:25pm

Time to stop using services from companies based in the US.
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David, 5 May 2015 @ 12:35pm

What about wiretapping landline phone call contents?
At the time of the "third party doctrine" for phone trap registers, the calls themselves were done by pushing electrons back and forth into the wires provided by the telephone company.

With the "third part doctrine" applied like in this court ruling, the calls would have been free for warrantless taking as well since they were entrusted to a third party's wires.

But apparently the contents of a conversation were considered protected against tapping/recording without warrant.

What changed? Like location records, this was information handed to a third party service in the expectation that its only use was immediate, tied to the operation only at a given point of time, and not subject to storage without cause or seizure without warrant.
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toyotabedzrock (profile), 5 May 2015 @ 12:41pm

They should try to argue that with cell site records the government has a 24 hour lock on your location. Unlike in the previous case where the phone user had purposely used the phone to make contact with someone.
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radix (profile), 5 May 2015 @ 12:47pm

Re: Criminal
While I would never condone such actions, I wonder what these judges would do/say if someone were to release their credit card purchase information. Maybe prescription history or other medical records.

All those are held by third parties, so hey, it's not like they have any expectation of privacy over such matters.
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Anonymous Coward, 5 May 2015 @ 1:02pm

Doesn't the government require the 3rd party collect and store this information? Is this a great way of end running around warrant requirement?
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Anonymous Coward, 5 May 2015 @ 1:04pm

Re: Re: Criminal
HIPAA would control release of any medical record. So those are fairly well protected
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John Fenderson (profile), 5 May 2015 @ 1:11pm

Re:
Yes. This is one of the two primary ways the third party doctrine is abused to allow searches that are clearly unconstitutional. The other way is to legally require the company to disclose the data.

The premise of the third party doctrine makes sense: that if I voluntarily hand information to you, then you may choose to hand that information to a third party. Therefore, if the government asks for the information and you choose to supply it, that isn't a search at all. It's just you volunteering something you know.

But in cases where you are legally required to supply the information (therefore you are not supplying it voluntarily anymore), or where you are not legally allowed to give the information (perhaps because of a contractual agreement), or when you are not consulted at all, the third party doctrine cannot logically apply at all.

The real problem here is that it applies anyway.
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Anonymous Coward, 5 May 2015 @ 1:16pm

FCC Regulations [was Re: ]
Doesn't the government require the 3rd party collect and store this information?
The government certainly required the cell phone operators to build location tracking into the system in order to support 911 services.

I don't know that the government further required the operators to collect location data on a continuous basis and to store this data. The FCC regulations are an ungodly morass—and require specialized regulatory experts to decrypt them in their entirety.
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RD, 5 May 2015 @ 1:21pm

Re: Constructive consent
"As for me, my cell phone is turned off right now."

If there is a battery in your phone, it is possible to track it. Doesn't matter if it's powered on or not. Your "I'm smarter than you luddites" brag only works if you have pulled the battery from the phone.
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Anonymous Coward, 5 May 2015 @ 1:28pm

Re: Re: Constructive consent
... only works if you have pulled the battery from the phone.
Oh, if you say so. I take it you're an EE?
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Anonymous Coward, 5 May 2015 @ 1:42pm

Re: Re: Re: Criminal
HIPAA only applies to medical professionals / corporations, if you have access to them another way....
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DogBreath, 5 May 2015 @ 1:50pm

Re: Re: Criminal
All it will take is one of the higher court justices nominees to get "BORKED", and I'm sure they will get a law passed... to make sure that their special snowflake warrantless phone tracking records are not releasable due to "reasons related to national security" and "because terrorism".
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John Fenderson (profile), 5 May 2015 @ 2:03pm

Re: Re: Constructive consent
Yes, it's true. Your phone is never actually turned off. That off switch just puts in in a standby mode, but it's still on and can still do things!

The only way to turn your phone off is to remove the battery.
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Anonymous Coward, 5 May 2015 @ 2:12pm

Re: Re: Re: Constructive consent
The only way to turn your phone off is to remove the battery.
The only way? So if you leave the battery in, but step on the phone, crushing it, that doesn't work for EMCON, for emissions control?

( Here's another quick snap question for you, Fenderson: How long is 1 ns? )
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Anonymous Coward, 5 May 2015 @ 2:32pm

You know what? If it's not the user's to withhold, it's also not the government's to compel. It's the company that gets to decide what happens with that information.
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John Fenderson (profile), 5 May 2015 @ 3:01pm

Re: Re: Re: Re: Constructive consent
OK, if you want to count destruction of the device as a form of "turning it off", then you're right. :)

"Here's another quick snap question for you, Fenderson: How long is 1 ns?"

Is this a trick question? I assume you mean 1 nanosecond. It is 1 billionth of a second, or 1/1,000,000,000, or 10e-9.
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Don't Track Me, Bro!, 5 May 2015 @ 3:06pm

Location data can be obtained because there's no expectation of privacy because location data can be obtained because there's no expectation of privacy.

This is what happens when you let Lamb Chop run a federal court.
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Anonymous Coward, 5 May 2015 @ 3:15pm

Re: Re: Re: Re: Re: Constructive consent
Is this a trick question?
Grace Hopper is still a name for all the CSci guys, isn't she?
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John Fenderson (profile), 5 May 2015 @ 3:25pm

Re: Re: Re: Re: Re: Re: Constructive consent
Grace Hopper deserves a lot of respect and to have her name forever memorialized in the halls of computerdom. But she pales in comparison to Ada Lovelace.
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Anonymous Coward, 5 May 2015 @ 3:33pm

Re: Re: Re: Re: Re: Constructive consent
OK, if you want to count destruction of the device as a form of "turning it off", then you're right. :)
If you believe that there's an NSA trojan installed on your phone, say the baseband processor is now running non-stock firmware —malicious non-stock firmware— then I'd strongly suggest getting a new phone.

But if you're just in the habit of running down to the grocery store for a six-pack of beer, then even just putting the phone into flight mode should be an adequate EMCON level.
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David, 5 May 2015 @ 3:50pm

Re: Re: Re: Constructive consent
Set the alarm clock in your phone, then turn the phone off. You'll find that the alarm will still go off because of a subsystem keeping awake. Now this subsystem needs prior instructions to power up the transmitters so it is likely that they need to infect your phone using a Stingray or similar device first while your phone is switched on before they can rely on being able to track you (through occasional transmits) even when you think it is turned off permanently.
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Anonymous Coward, 5 May 2015 @ 3:54pm

Re: Re: Re: Re: Re: Re: Constructive consent
"If you believe that there's an NSA trojan installed on your phone, say the baseband processor is now running non-stock firmware —malicious non-stock firmware— then I'd strongly suggest getting a new phone."

Waaaay to complecated. Why would the NSA need a trojan? You already have an OS on the phone. They can just use/buy a 0day or simpler, tell the company to give them whatever they want. The company can't say no and you will never hear about.
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Anonymous Coward, 5 May 2015 @ 4:10pm

Re: Re: Re: Re: Constructive consent
You'll find that the alarm will still go off because of a subsystem keeping awake.
Nice theory. However, your theory fails in testing. My phone doesn't do that.

Instead, when I turn the phone back on, it doesn't even tell me that I missed an alarm! The alarm is still set, but I don't think it's planning on going off until maybe tomorrow, if the phone happens to be turned on tomorrow.

Perhaps you own a defective phone? That would explain your defective theory.
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Anonymous Coward, 5 May 2015 @ 4:26pm

Re: Re: Re: Re: Re: Re: Re: Constructive consent
Waaaay to complecated.
I understand perfectly: You are justifying why your phone is turned on right now.

You consent to tracking. Constructively. Through your action. Or inaction.
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tqk (profile), 5 May 2015 @ 4:58pm

Re: Constructive consent
Right now, if your phone is turned on, then you consent to being tracked wherever you go.

I don't have any problem with that. It's the virtual form of a cop walking a beat. However, the devil's in the details. How much will they see? How far will they go to find out? At what point should they be expected to get a warrant before continuing?

As to storing historical information at my provider which may become available subsequently to the police upon presentation of a warrant, I don't think there's anything wrong with that either. Perhaps how long that history is stored is negotiable, or should that be defined by statute? That's a value judgement. If possible, I'd go for no logging, but I doubt I'd get it.
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tqk (profile), 5 May 2015 @ 5:07pm

Re: Re: Re: Re: Re: Re: Re: Constructive consent
But she pales in comparison to Ada Lovelace.

We need a new computer language. We've got Ada, now we need Lovelace. Then we port the Linux kernel to Lovelace. Let's go Pinky. I imagine this'll take us until noon tomorrow at least. Then, world domination!
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Anonymous Coward, 5 May 2015 @ 5:09pm

Re: Re: Constructive consent

Right now, if your phone is turned on, then you consent to being tracked wherever you go.
I don't have any problem with that.
In British Columbia?

Because I did not say that I don't have any problem with it. Rather, I'm simply stating the facts on the ground. And telling you that my phone is turned off at this moment.
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tqk (profile), 5 May 2015 @ 5:24pm

Re: Re: Library records ?
For instance, the library I use does not keep historical records of books checked out by their users although they do offer an "opt in" to allow for historical tracking. I suspect that the default of no tracking is a direct response to not have any records that can be seized by law enforcement.

My library says this about its historical data which is farmed out to something called BiblioCommons:
To delete your BiblioCommons account, please contact the BiblioCommons Privacy Officer. Note that while your BiblioCommons account information will not be available after deletion, some of that information may persist on memory discs.

Which is where I thought "Hold it. We make backups, don't we? This is basic big org IT. Of course we'll take backups."

So, whether they actually track history or not, it's recoverable, and just grepping log files for your library acct. no. is all that's needed.
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Anonymous Coward, 5 May 2015 @ 9:06pm

The laws don't apply to us because we say they don't. Of course they still apply to everyone we enforce them at gunpoint to.

That's your federal government and their opinion of the average citizen
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AJ, 6 May 2015 @ 3:42am

So if your going to go out robbing banks, give a friend your phone and the keys to your boat, go rob your bank, then if they question you, point at your phone and say "I couldn't have possibly robbed that bank, I was on a boat".

These idiots need to keep in mind that it doesn't tell you where"you" are, it tells them where your phone is. Someone that really knows what they are doing can build a digital alibi using cell phones, ez pass toll readers, credit cards at gas stations... etc. They don't have to be perfect, just cast a reasonable doubt right?

Or for the true privacy cell phone end game. How about a cell phone case thats also a Faraday Cage? You only can be seen when you want to be seen, and again, you can do so to your advantage.

http://www.popsci.com/gadgets/article/2013-08/how-protect-yourself-your-phone

My point is, the gov thinks they are clever, but there are so many ways you can use their hubris to your advantage it's almost funny. What they think is an advantage, can suddenly become a case breaker.
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David, 6 May 2015 @ 3:53am

Re: Re: Re: Re: Re: Constructive consent
Well, I don't own a "smart" phone. Maybe your "apps" or OS are too stupid to provide desirable functionality but I still should be surprised if the basic power/transmitter/receiver circuitry were not controlled by a separate baseband processor like the dumb phones have already.

So even if you don't manage to access the advantages from the separate basic control subsystem, I'd be very much surprised if you don't still have the disadvantages.
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Anonymous Coward, 6 May 2015 @ 5:14am

Re: 3rd Paty Doctrine
I do not recall the Third Party Doctrine ever coming up for a vote at the public level, state or federal. Guess I missed it, perhaps you could point out when this occurred?

If this did not ever come up for a vote, then which winning candidate espoused their desire for Third Party Doctrine and made it a part of their campaign platform?

If no winning candidate ever publicly proclaimed this, then how is the voting public to know what the prospective politician will do after having been elected?

Anyways ... you can probably see how silly your claim is - right?
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Anonymous Coward, 6 May 2015 @ 5:16am

Re: Re: Re: Constructive consent
If you suspect that you live in a fascist society, you should just go hide under a rock?
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Anonymous Coward, 6 May 2015 @ 5:19am

Re: Re: Re: Re: Re: Re: Re: Re: Constructive consent
Bullshit.
The phone user does not consent. - Hell, they don't even know about it so how could they consent to it?

Just because you proclaim something to be the case, does not make it so.
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James G. Witte (profile), 6 May 2015 @ 5:24am

If there is no need for a warrant, than anyone can ask for the data for any phone number. If there is no expectation of privacy, then anyone can simply request the information from the phone company. Is it stalking, if there is no expectation of privacy? And will no-contact orders now require additions to not request this information from the phone company? When I can just ask my buddy to ask for it and he/she will give it to me. How long before it is declared that phones belonging to members of the Police force or the Mayor's office have an expectation of privacy but average citizens do not?
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Uriel-238 (profile), 6 May 2015 @ 10:17am

Re: FCC Regulations [was Re: ]
I believe that the telcoms are paid by the government to collect continuous location data, store it and share it freely with government agencies.

This is a situation in which our protections against illegal search have been compromised, and the court is depending on semantics to keep them suspended.

And as a diversion they suggest we take it up with our absentee congress.
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Anonymous Coward, 6 May 2015 @ 11:17am

Re: Re: Re: Re: Re: Re: Constructive consent
Well, I don't own a "smart" phone...
No, your dumb ol' phone owns you, doesn't it?

Look, I understand that you have an excuse for not turning off your phone. It's just too much of a hassle for you. Just too much of a hassle. And how much good would it really do? They could still focus on you if they set their minds to it. So why bother? It's just too much of a hassle. Too complicated. It's too complicated for you to turn off your dumb ol' phone.

That's your excuse.

Maybe your "apps" or OS are too stupid to provide desirable functionality...
In the biblical story, at least Esau had the excuse he was starving before he sold his birthright for a bowl of lentils.
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Anonymous Coward, 6 May 2015 @ 11:20am

Re: Re: Re: Re: Re: Re: Re: Re: Constructive consent
The reason why my phone is on at the moment is to receive calls. Turning it off kind of turns it into a brick with tracking capabilities as long as the battery is still in (wondering why they use glue on those things).

If you think you make a statement by turning your phone off then I guess your phone company says "thanks" because you pay and don't use the service, the perfect customer.
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tqk (profile), 6 May 2015 @ 11:23am

Re: Re: Re: Constructive consent
In British Columbia?

Yes. So? 99% of the ads displayed on websites I visit are storing away all kinds of stuff it gleans from my browser. EFF has a tool which'll show you what's possible.

As I say, it's as threatening to me as meeting a police officer on the street while he/she walks a beat. I expect it.

If I wanted to go dark, I'd use tor browser bundle.
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Anonymous Coward, 6 May 2015 @ 11:29am

Re: Re: Re: Re: Constructive consent

In British Columbia?
Yes. So?
Just the different legal environment.

Of course, we do have quite a bit of law in common. But the Canadian Charter is not the United States' Bill of Rights. And, if understand correctly, at the provincial level, B.C. does not have the provisions that are found in, for instance, the Washington Constitution.
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Anonymous Coward, 6 May 2015 @ 12:19pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Constructive consent
The reason why my phone is on at the moment is to receive calls.
”At the tone, please leave a message.”
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tqk (profile), 6 May 2015 @ 2:55pm

Re: Re: 3rd Paty Doctrine
If no winning candidate ever publicly proclaimed this, then how is the voting public to know what the prospective politician will do after having been elected?

You have three (theoretically) equal entities in your gov't: Exec. Branch (President), Congress, and Justice system (cf. Supreme Court).

So, the way this works is, Congress writes a law which upon being tested demands interpretation by the Supreme Court. At that point, it's a crapshoot and can even be political (yes!?!) because Supremes are nominated by Executive branch, which is beholden to one of the two wings of the always ruling party.

Smiple.[sic]
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tqk (profile), 6 May 2015 @ 3:00pm

Re: Re: Re: Re: Constructive consent

(Personally, I favor a Faraday cage.)

If you suspect that you live in a fascist society, you should just go hide under a rock?

I imagine he meant it as part of the overall toolkit. After all, if you're going out on the streets of Warsaw in '39 with the express purpose of shivving in the back every Nazi you run across, a Faraday cage for your cell phone might be a worthwhile investment. Contradictions aside.
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tqk (profile), 6 May 2015 @ 3:19pm

Re: Re: FCC Regulations [was Re: ]
I believe that the telcoms are paid by the government to collect continuous location data, store it and share it freely with government agencies.

That should require a warrant, yes? Did they get one? Have they violated the Constitution, or not? After all, they had to pass a law to retroactively make AT&T's transgressions on the part of the fibbies legal.
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tqk (profile), 6 May 2015 @ 3:45pm

Re: Re: Re: Re: Re: Constructive consent

Yes. So?

Just the different legal environment.

Not for long. You know your gov't is exporting all the stuff TD talks about to all its international neighbours, of course? John Diefenbaker likened it to a mouse sharing a bed with an elephant. We always know about you doing one of those roll-overs. Our existence depends on it.

I've never read the Washington Constitution. Is it anything like the US Constitution (I'm being deliberately thick here; sorry)? At one point in US history, "The States" had primacy over central gov't, but (post-Lincoln?) it's all been feds "on top." That's my USA history "TL;DR."
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Anonymous Coward, 6 May 2015 @ 4:26pm

Re: Re: Re: Re: Re: Re: Constructive consent
I've never read the Washington Constitution.
Washington State Constitution: ARTICLE I: DECLARATION OF RIGHTS
SECTION 1 POLITICAL POWER. All political power is inherent in the people, and governments derive their just powers from the consent of the governed, and are established to protect and maintain individual rights.
. . .
SECTION 7 INVASION OF PRIVATE AFFAIRS OR HOME PROHIBITED. No person shall be disturbed in his private affairs, or his home invaded, without authority of law.
Section 7 is construed more broadly than the Federal Constitution's Fourth Amendment.

...it's all been feds "on top."
The FBI, and other federal agencies naturally consider themselves at liberty to ignore the several state constitutions and laws.

But, it's an open question whether the Seattle Police Department, for instance, would obey rulings from Washington's Supreme Court about Stingray use, or other means of acquiring cellphone location data. There's perhaps a chance the SPD would listen to the state's highest court. Or, possibly the SPD would obey the Washington legislature, if they can be prevailed upon to act.

On the other hand, though, historically the SPD has not had outstanding respect for civil rights and liberties. It might have something to do with traditional Anti-Wobblyism.
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Uriel-238 (profile), 6 May 2015 @ 4:29pm

Campaign promises
George W. Bush ran as a compassionate conservative, did not get actually elected (rather SCOTUS stopped the count) and as his press correspondents were promising a measured administration started immediately pushing a Bridesmaid's Tale caliber conservative agenda.

Obama ran on Hope and Change and was even made a laureate of the Nobel Peace Price for not being Bush. Also, more government transparency, but that was a smaller bullet-point. Then he continued all of the worst of the Bush regime (sic), including a distinctly opaque administration.

I suggest, based on these recent examples, determine the veracity of all future US election campaigns, applicable to any office.
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deenie129, 6 May 2015 @ 6:12pm

Re: Constructive consent
AFAIK, even with the phone off, you can be tracked. Safest is to put it in a metal case. I bought a cheap one at Wal-Mart, made for oversized glasses.
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Anonymous Coward, 6 May 2015 @ 7:11pm

Re: Re: Constructive consent
... made for oversized glasses.
Did you remember not just to inspect it carefully, but to test it?

The seam where a box closes may be a concern. Slot antennas can make effective re-radiators.
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Anonymous Coward, 6 May 2015 @ 7:13pm

Re: Campaign promises
... was even made a laureate of the Nobel Peace Price for not being Bush.
I guess Henry Kissinger won half the '73 Peace prize for not being Nixon.

Maybe Le Duc Tho won the other half of '73 for not being Nixon too.

Jes' sayin'.
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Uriel-238 (profile), 6 May 2015 @ 7:17pm

Forth Amendment?
Third party doctrine and creative interpretations of the PATRIOT act.

Also parallel construction.
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Uriel-238 (profile), 6 May 2015 @ 7:30pm

Henry Kissinger was good-cop to Nixon's bad cop.
And Lê Ðức Thọ refused his half on grounds that no peace accord actually was signed.

And I'm pretty sure whatever was signed only to stop the Operation Arclight bombings. E.g. under duress. (Which were being done in violation of UN rules-of-engagement)

So...pretty much yes.
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David, 7 May 2015 @ 3:57am

Re: Re: Re: Re: Re: Re: Re: Constructive consent
Well, I don't own a "smart" phone...

No, your dumb ol' phone owns you, doesn't it?

Look, I understand that you have an excuse for not turning off your phone.
In the "understanding" department you seem to have some serious deficiencies. My dumb old phone is off for weeks on end. I just turn it on when there is a job for it to do. Alarm clock duty does not require leaving it on. It only requires turning it on for setting an alarm.

I am aware that the capabilities connected with the alarm clock mean that once the phone is compromised, it may, at some cost in battery life, thwart the attempts to remain non-locatable by turning the phone off.

Your wildly erratic accusations and theories about what I may have meant with my words are mildly amusing but not based on what I wrote.
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Uriel-238 (profile), 7 May 2015 @ 10:45am

When criminals go dark, they use throwaway burner phones.
...so that they appear for the duration of the crime and then vanish.

I have a minor technical question.

When people say that the phone is still traceable when turned off, that's not clear.

Normally my phone sleeps, meaning it will awaken whenever someone calls me or sends an SMS or any number of a variety of communication transactions (I prefer various chats way over voice correspondence). Also it will remind me of things on my calendar.

Then I can shut it down, at which point it doesn't respond to anything except a power-up request.

Also, Airplane mode, for when I'm near the airport and I don't want to be responsible for jamming delicate airliner gear and sensitive pilot brains, and causing spectacular midair collisions.

My phone in all three of these cases, or just the first one or what?
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Anonymous Coward, 7 May 2015 @ 1:02pm

Re: When criminals go dark, they use throwaway burner phones.
My phone in all three of these cases, or just the first one or what?
It depends on your threat model. That's true for security in general: You need to assess your threat environment, and model your likely adversary's deployed capabilities in that context.

If your adversary is a major nation-state (Russia, China, etc.), and you work for a foreign intelligence service (CIA, etc.), then you have one set of problems. If, on the other hand, you're a newspaper reporter or a union organizer operating in America, then you have a different set of problems.

Worst case, you could have taken the battery out of your phone, and still have the phone tracked at some distance. If you're familiar with passive RFID tags, then we're on that wavelength in that scenario.

But most people don't have good, non-paranoid reasons to expect an intense level of dedicated effort targeting them personally. Rather, in America, ordinary folks may be concerned that they might be a block away from a political protest when the city police red squad obtains a cell-tower dump for that area. If that's all you're worried about, then in my opinion, just putting the phone into airplane mode should be a sufficient counter-measure.
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Anonymous Coward, 7 May 2015 @ 6:06pm

Who wants to buy some social security numbers? Pick a tax bracket and I'll ensure the identity fits.
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spockers, 15 Nov 2015 @ 3:46am

Re: Re: Constructive consent
Did you read the article you linked?

"...to spy on phones when they are turned off, agencies would usually have to infect the handset with a Trojan that would force it to continue emitting a signal if the phone is in standby mode..."

You (and the author of the article you linked) are confusing the terms OFF and STANDBY, which is crucial.
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