Court: Cell Site Location Records From Five Minutes Ago Are 'Historical,' Not 'Real Time'
from the rewriting-history-multiple-times-per-hour dept
The word "historical" tends to conjure up images of musty buildings with plaques attached to them denoting the original construction and possibly who did what when, but several dozen years ago. While anything that happened just before right now could literally be termed "historical," most people tend to associate the word with things that happened well before the exact present.
Not so much the courts, though. "Historical" data involves anything not collected in "real time," apparently. The North Carolina Court of Appeals has ruled that something occuring at nearly any time before right now is "historical," even if the "history" itself traces back less than ten minutes.
Superior Court Judge Lucy N. Inman signed the order and Detective Mitchell submitted it to AT&T, the cellular phone service provider and holder of the account associated with the phone number. AT&T provided the records of the location of the cell phone tower “hits” or “pings” whenever a call was made to or from the cell phone. AT&T sent emails of the longitude and latitude coordinates of these historical cell tower “hits” to Detective Mitchell every fifteen minutes. Detective Mitchell testified an approximately five- to seven-minute delay occurred between the time the phone “pinged” a cell phone tower and the time AT&T received and calculated the location and sent the latitude and longitude coordinates to him.This location info helped track the defendant to a motel and he was arrested shortly thereafter. The defendant sought to suppress the warrantless "search" of his cell phone and its location (obtained via a phone records production order that ran from a month before it was requested to two days after the request was granted [December 10, 2012]). The location data that traced the defendant back to the motel room was acquired (with a 5-7 minute delay) on December 11.
The defendant argued that the "real time" tracking of his location violated his Fourth and Fourteenth Amendment rights (as well as analogous parts of North Carolina's constitution). The court doesn't buy these arguments, citing the Stored Communications Act, which allows government entities to obtain certain third party records without a warrant. It says the difference between what's been considered unconstitutional by several courts -- obtaining real-time location information with a tracking device -- isn't what's happening here.
It argues that because the police didn't intercept these "records," everything is above-board, even if the sought "historical" data included two days of "records" that were created after the court order was approved.
Several courts have held the SCA permits a government entity to obtain cell tower site location information from a third-party service provider in situations where the cell tower site location information sought pre-dates the court order and where the cell tower site location information is collected after the date the court order issues. Although the former may technically be considered “historical” while the latter is “prospective” in relation to the date of the court order, both are considered “records” under the SCA. The government entity only receives this information after it has been collected and stored by the third-party service provider.In plainer English, this means law enforcement entities can seek "historical" records from the "future," with the mitigating factor being that the records are collected by third parties first. A short delay of a few minutes is enough to call these records "historical" under this interpretation.
In a slightly-dissenting concurrence, Judge C.J. McGee diagrees with the court's definition of "historical" records (while finding the overall opinion valid because of the good faith exception).
Because most federal courts recognize that historical cell site information consists of information generated prior to the issuance date of a judicial order that allowed law enforcement to obtain such records for a given defendant, and because I believe allowing the majority’s characterization of the information provided by AT&T to law enforcement, based on the facts in this case, would effectively obliterate the distinction between “historical” and “real-time” cell site information, I must respectfully disagree with the majority’s characterization.McGee points to a few details that make this "historical" location data far more analogous to real-time tracking: the fact that the court order allowed for the acquisition of cell site location records for two days past the point of issuance, that the police and AT&T remained in constant contact during the tracking of the suspect and the same short delay ("5-7 minutes") that the majority declared made the records "historical."
While the majority's interpretation dilutes the meaning of "historical" by including location data yet to be generated under its warrantless wing, it does point out to possible future problems with the use of Stingray devices. These have often been deployed with the same sort of court orders, but contain the ability to track individual phones in real time. Once more details on these deployments come to light, the courts will be forced to confront a plethora of Fourth Amendment violations -- at least if they're going to remain consistent with this interpretation of "historical."
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Filed Under: 4th amendment, cell site location info, csli, ecpa, law enforcement, north carolina, sca, stored communications act
Companies: at&t
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Brilliant!
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Re:
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Dear U.S. courts:
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Re: Dear U.S. courts:
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Re: Dear U.S. courts:
To: The American People
Words mean what the powers that be want them to mean.
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*sound of 4th Amendment being crumpled up*
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And there's another little tidbit in the decision. The prosecution submitted some documents to the court and didn't allow the defense to see them. The appeals court says that's perfectly fine and the documents wouldn't help the defense. But isn't that for the defense to decide?
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History Class
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Re: History Class
Sort of sounds like something they might do anyway for Common Core...
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Re: History Class
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Don't you know your humpty-dumpty? (A word means exactly what I want it to mean, nothing more, nothing less...)
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And the whole thing goes to hell...
If data can be used without a warrent by setting up someone else to collect it and delay it by 5 minutes, then it opens up a whole lot for every agency, as I see it.
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Re: And the whole thing goes to hell...
No matter what small gains are made as long as those people are in power it will never go away just keep coming back stronger and stronger.
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Law enforcement wants it both ways: "We only want to see where he was 5 minutes ago, so it's not real-time tracking." And: "Give us a warrant, he's still there."
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Reminds me of this story
https://en.wikipedia.org/wiki/The_Dead_Past
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don't be an ass, milliseconds aren't material in REAL person-made trades; that ONLY matters with insane algol-gone-wild computer trading, which both cause and take advantage of milli-penny stock swings...
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Traders have moved their offices physically closer to the data sources because the time it takes LIGHT to travel a few hundred miles makes it too late.
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not a problem
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Re: not a problem
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