Prosecutors Argue Cell Site Location Data Is Something Every User Shares With 'The Rest Of The World'

from the no-expectation-of-privacy-in-things-we-insist-everyone-knows dept

Fri, Feb 5th 2016 12:46pm — Tim Cushing

The state of Maryland's defense of the Baltimore PD's warrantless use of Stingray devices continues, taking the form of a series of motions unofficially titled Things People Should Know About Their Cell Phones.

The last brief it filed in this criminal prosecution claimed "everyone knows" phones generate location data, therefore there's no expectation of privacy in this information. As commenters pointed out, people may know lots of stuff about records they're generating, but that doesn't mean law enforcement should have warrantless access to those records.

Everyone Knows… That my Doctors generate medical data about patients, so how about we get their medical records on public display without warrants!

With no expectation of privacy, there's no need for a warrant. And with no warrant requirement, there's no chance of having evidence tossed. That's a win Maryland needs, considering the Baltimore PD alone has deployed IMSI catchers several thousand times without obtaining warrants. Everything runs through pen register orders, which both lower the burden of proof and (in many cases) obscure the technology actually being used.

Now, it's back with its response to the defendant's motion to dismiss and it's again claiming People Know Stuff, therefore no expectation of privacy. (h/t Brad Heath)

After dismissing the defendant's arguments about police use of location tracking devices as "dystopian fantasies," the state argues it's time for the accused (not just this one, but any others facing prosecutions predicated on warrantless cell phone tracking device usage) to stop pretending they don't know how much data their phones are coughing up.

While cell phones are ubiquitous, they all come with "off" switches. If a cell phone is turned on, it is receiving signals from cell towers, and sending signals back out to cell towers. The cell site simulator used in this case took advantage of that fact in order to locate Andrews's phone. Because Andrews chose to keep his cell phone on, he was voluntarily sharing the location of his cell phone with third parties. Under the doctrine set forth by the Supreme Court in Smith, supra, he cannot claim a Fourth Amendment privacy right in this case.

The "Smith" the state refers to is 1979's Smith v. Maryland, which law enforcement loves to use in cell phone surveillance cases, because:

a) it's incredibly outdated, and
b) it provides a very broad and favorable reading of the Third Party Doctrine as it relates to phone usage.

The state says it's the defendant's own fault he was located. After all, he had a choice. And he chose badly.

Andrews complains that the police "invaded" a "constitutionally protected area," and therefore this search triggered Fourth Amendment protections under United States v. Karo, 468 U.S. 705 (1984) and Kyllo v. United States, 533 US. 27 (2001). But in Karo, the suspect was unaware that he had brought a police transponder into his home, and in Kyllo, the suspect was unable to prevent grow-lights (or his body) from emitting heat. Andrews, by contrast, was quite aware that he was bringing his own cell phone into the house. And he was quite capable of turning it off

The government's argument, while technically solid when used in conjunction with these precedent-setting decisions (Smith's outdated view of phones notwithstanding), but it becomes completely disingenuous when it describes the "sharing" of identifying phone data.

Just as the telephone company in Smith used transmitted phone numbers in a way quite distinct from the way in which the police used them, so, too, Andrews's cell service provider used the ID number broadcast by his cell phone in ways quite distinct from the way in which the police used it. The way in which the information was used does not alter the "expectation of privacy" in the information itself. Smith controls here. Andrews's addition of the adjective "exact" to the noun "location" does not alter that fact. The issue is not whether Andrews was aware that the police could find the location of his cell phone to within 20 yards. The issue is whether Andrews can claim an objectively reasonable expectation of privacy in information which he was voluntarily broadcasting to third parties at all times. Under Smith, the answer is no.

There is no Fourth Amendment right to evade a valid arrest warrant. Andrews was wanted on multiple counts of attempted murder. A life "on the lam" may require some inconveniences, such as not staying in one's home, and turning one's cell phone off when not in use. There is no constitutional right to avoid being arrested for one's crimes, and nothing unreasonable about the police using the same information that Andrews was sharing with the rest of the world to apprehend him.

The "rest of the world?" Really? Andrews may have been able to talk his cell phone provider into turning over a copy of all the data his phone had generated, but it's not as though the general public has access to this information, expectation of privacy or no. Just because law enforcement can access this information with warrants or (more likely) pen register orders does not make it information "shared" with "the rest of the world." It is not shared indiscriminately and it's only because cell providers are legally compelled to cooperate with law enforcement (CALEA, etc.) that cops can obtain this information with a pen register order, rather than a warrant.

And, in this case, the information was not obtained with a court order. There may be a court order on record that would give the impression the BPD would approach a telco for phone records, but the actual collection of Andrews' location info was done with a Hailstorm cell tower spoofer. The state claims the request specified the use of a cell tower spoofer but there's no indication the presiding judge had any idea how much information these devices can obtain. A pen register order refers to a targeted phone number. A cell tower simulator gathers information from everyone in the area.

This isn't just a fight over this particular prosecution. This is the state safeguarding its thousands of Stingray deployments. If it's going to be able to keep those prosecutions from falling apart -- now that the BPD's devices are an open secret -- it needs the court to agree there's no expectation of privacy in cell phone location data. And in order to do that, it apparently needs the court to believe everyone using a cell phone is sharing all sorts of information with "the rest of the world."

Cell-Location-Md-State-Brief (PDF)Cell-Location-Md-State-Brief (Text)

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Filed Under: 4th amendment, baltimore, expectation of privacy, location, location data, maryland, privacy, third party doctrine

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Anonymous Anonymous Coward, 5 Feb 2016 @ 12:52pm

Two way street
So, if we find out that the prosecutor is on...say the AT&T network, we could approach AT&T and get the prosecutors cell site location history?

Yeah, right.
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JD, 5 Feb 2016 @ 1:08pm

Human bodies choose to emit heat
Since people don't retain the use of body cooling technologies and simply choose to broadcast information through the infrared spectrum, citizens have no standing to object when police use IR cameras to track their movements inside a house without a warrant.

It's like people don't understand physics!
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Anonymous Coward, 5 Feb 2016 @ 1:08pm

Where is the third party in this, as location data is information that the phone company and subscriber share, and is not transmitted to another party. (All right their is an exception for 911 operators).
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M. Alan Thomas II (profile), 5 Feb 2016 @ 1:12pm

There is no Fourth Amendment right to evade a valid arrest warrant. Andrews was wanted on multiple counts of attempted murder. A life "on the lam" may require some inconveniences, such as not staying in one's home, and turning one's cell phone off when not in use. There is no constitutional right to avoid being arrested for one's crimes, and nothing unreasonable about the police using the same information that Andrews was sharing with the rest of the world to apprehend him.
So what I'm reading here is that it is the government's belief that you do not have any constitutional rights if the government issues a warrant for your arrest; any and all methods to arrest you should be legal because "There is no constitutional right to avoid being arrested for one's crimes." Scary.
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Anonymous Coward, 5 Feb 2016 @ 1:12pm

It really upsets me to hear that prosecutors are trying to set such a poor precedent in order to win a case.
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M. Alan Thomas II (profile), 5 Feb 2016 @ 1:15pm

Re:
The first and second parties are the police and their target. The phone company is not directly involved in A trying to catch B; they're just a third party, as is everyone else who is not the prosecution or the defense.
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ThatDevilTech (profile), 5 Feb 2016 @ 1:35pm

My thought....
They're fighting so hard to keep the cell data. Makes me think they have nothing else to convict him on? The police departments and prosecutors today are so ready to fling everything at the wall to see what sticks instead of, oh I don't know, ACTUALLY doing the legwork and true detective work to get a solid case?

Boys and their toys.
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Anonymous Coward, 5 Feb 2016 @ 1:36pm

Re:
This is indeed the governments assertion.

Once arrested you have no rights, which is essentially true.
You can be stripe searched, you can be fondled, you can be beaten, you can be locked up and forgotten about.

Your trial will additionally be lengthy delayed. You can be arrested for ANY REASON.

You only have the rights they allow you to keep. If you don't like it you can always challenge them as the rest of us worthless citizens look on and do nothing about your plight.
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That One Other Not So Random Guy, 5 Feb 2016 @ 1:37pm

"Prosecutors Argue Cell Site Location Data Is Something Every User Shares With 'The Rest Of The World'"

Then... can I have it?
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DannyB (profile), 5 Feb 2016 @ 1:47pm

OK, quick, anyone here, what's my cell site location?
What?

You don't know it?

But I thought I was sharing it with everybody?
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Anonymous Coward, 5 Feb 2016 @ 1:52pm

Re: My thought....
It's not the cell location data that would be used to convict him. The cell location data was used to find him which precluded any evidence they gathered once they did and arrested him. The argument then follows because they violated his rights in order to attain THAT evidence then all of that evidence should be inadmissible.
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lars626 (profile), 5 Feb 2016 @ 2:04pm

Shared with who ...
Even if he knew he was sharing with the telco as part of the service agreement, I doubt that he consented to sharing with the police through the IMSI.

The police inserted their equipment in place of the cell tower. That goes beyond simply tapping a phone line which does require a warrant.
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Zangetsu (profile), 5 Feb 2016 @ 2:15pm

So how much does a cell simulator device cost?
The reason I'm wondering about the cost is that I wanted to start a GoFundMe page or something to purchase one. Because if there is "nothing unreasonable about the police using the same information that Andrews was sharing with the rest of the world to apprehend him," then there really shouldn't be an issue with me buying one and sitting outside a police station with the cell simulator on and capturing all of the data. I won't listen to the phone calls, just record the metadata. After all if you've got nothing to hide I should be able to do this, right?
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Anonymous Coward, 5 Feb 2016 @ 2:30pm

Sounds like people are just jealous that they don't have the ability to pick up on the broadcasting location of the PD and prosecutor at all times.

I mean don't you have a stingray just lying around your home? I thought everyone had one.
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DigDug, 5 Feb 2016 @ 2:32pm

Not all phones have "off" switches...
Apple products do not actually power off, as was found by travelers who had to pay thousands in roaming fees after taking their iCrap products on their cruise ships.

If I turn off "locations" services on my phone, ie - E911 only, I certainly expect my location to be private.
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Anonymous Coward, 5 Feb 2016 @ 2:39pm

they know they are breaking laws using stingrays but instead of fixing that. Their solution is to tell a lie big enough in the hopes that judges overlook their blatant law breaking.
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Anonymous Coward, 5 Feb 2016 @ 2:41pm

Re:
You don't have any rights at all. They just like to pretend you do until said illusion gets in their way. Then the reality you are just a slave comes crashing home.
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Mike Acker (profile), 5 Feb 2016 @ 2:43pm

Illegal on any level
the "stingray" is illegal on any level: it is unlawful interference with licensed radio communications
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Anonymous Coward, 5 Feb 2016 @ 2:43pm

Re: So how much does a cell simulator device cost?
You can't. It's against FCC regulations.
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alternatives(), 5 Feb 2016 @ 3:26pm

Great!
therefore there's no expectation of privacy in this information

Great! Then I want to be able to decode this information.

Do show the location for this API so any old GNU Radio kind of project can pick it up.

Oh, and do show me where it is LEGAL for me to have and decode this knowledge.
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s2lim, 5 Feb 2016 @ 3:38pm

Hey, this argument sounds almost exactly opposite to the copyright industry - "You can't download it just because it's there." vs "It's there therefore I can".

I'm leaning towards " fuck 'em both ".
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Anonymous Coward, 5 Feb 2016 @ 3:48pm

These prosecutors are real idiots. Just because I'm screaming at the top of my lungs at my family doesn't mean that the police have the right to enter my home without a valid court-issued search warrant. They may knock on my door, but they may not enter unless they know of a crime being committed. It's called "exigent circumstances". Hate to explain this to a prosecutor, but screaming at your family is not considered a crime.

The same goes for cell site location data or "meta-data". Just because a user knows that location data is generated doesn't mean that anyone in law enforcement can collect that information without a search warrant. Law enforcement is held to a higher standard than the general public and they simply cannot go around seizing data or evidence just because they can.

It's why courts routinely throw out evidence with the issuance of a valid search warrant. They have rules they must follow before it can be used as evidence in a trial.
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Anonymous Coward, 5 Feb 2016 @ 3:50pm

Re:
correction (last paragraph):

"It's why courts routinely throw out evidence with the issuance of a valid search warrant. They have rules they must follow before it can be used as evidence in a trial."
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Anonymous Coward, 5 Feb 2016 @ 3:51pm

Re: Re:
I meant to say "without" a valid search warrant. lols
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Zonker, 5 Feb 2016 @ 3:52pm

There is no Fourth Amendment right to evade a valid arrest warrant.
There is a Fourth Amendment right requiring probable cause and a search warrant to locate a suspect on private property.
Andrews was wanted on multiple counts of attempted murder.
Then you should have had no problem obtaining a proper search warrant in order to locate him.
A life "on the lam" may require some inconveniences, such as not staying in one's home, and turning one's cell phone off when not in use.
A life of "law enforcement" may require some inconveniences, such as obtaining a search warrant in order to search someone's private residence or phone data to locate a fugitive.
There is no constitutional right to avoid being arrested for one's crimes,
There is no constitutional right to avoid the explicit Fourth Amendment restrictions against unreasonable search and seizure if it makes your job in law enforcement harder.
and nothing unreasonable about the police using the same information that Andrews was sharing with the rest of the world to apprehend him.
If Andrews had tweeted to the world "Here I am at (this address)! Come and get me!" then it would be reasonable for the police to use that information. Andrews only shared phone location information with his phone company's privately owned cell towers as a technical requirement for phone service to work and exercise his right to participate in private conversations using modern technology. The police wire(less)tapped his phone with an intercepting cell tower spoofer in order to trick his phone into giving them its location, which requires a specific warrant they couldn't be bothered to obtain.
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Anonymous Coward, 5 Feb 2016 @ 3:57pm

About that data...
How about a foreign country is allowed to get all the data you produce? Emails on gmail? Let's give it to some foreign country. All the meta data? Oh, no problem, here you go!

https://www.washingtonpost.com/world/national-security/the-british-want-to-come-to-america--with- wiretap-orders-and-search-warrants/2016/02/04/b351ce9e-ca86-11e5-a7b2-5a2f824b02c9_story.html

The UK is a prime country of civil rights. They might have just ignored a UN ruling but who cares? As long as they say that UN rulings have to be followed by Iran we don't care if they ignore rulings that involve the UK. After all the US never even agreed to that court and it's rulings.
So sure the Uk can spy on all US citizens because after all the US citizens have nothing to hide and don't mind if some Brit looks at their Nude girlfriend or his dickpic.
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Anonymous Coward, 5 Feb 2016 @ 4:02pm

Re: About that data...
Looking forward to looking at all those sweet nude pics. You have to love the NSA for collecting all those sweet sweet pics. Especially you Sarah from Oklahoma*, damn girl! You look fiiiine!

*pretty sure there is some Sarah in Oklahoma. I don't have access to those pictures which in fact do exsist. Name Sarah was used because that's the name of my latest ex. No individual was targeted.
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Anonymous Coward, 5 Feb 2016 @ 4:03pm

"Prosecutors Argue"
There's really no point in reading any further than that.
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Zonker, 5 Feb 2016 @ 4:04pm

Re:
Not to mention that they incidentally wire(less)tapped every other privately owned cell phone within range of their cell tower spoofer in order to obtain the location of a single suspect. Thus they violated the rights of everyone within range of the cell tower spoofer who wasn't the suspect as well.
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Anonymous Coward, 5 Feb 2016 @ 4:55pm

Re: Re:
> You can be stripe searched, you can be fondled, you can be beaten, you can be locked up and forgotten about.

You touch my stripe, you WILL be beaten up. :)
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That One Guy (profile), 5 Feb 2016 @ 9:53pm

Re: Re: So how much does a cell simulator device cost?
Just lie, worked for them after all.
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Anonymous Coward, 5 Feb 2016 @ 10:57pm

Until some nut or group of them methodically starts taking out these towers this nonsense will continue. All I need is your number, my drone will do the dirty work.
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Anonymous Coward, 6 Feb 2016 @ 6:16am

Re:
Makes that whole mess with Dorner seem more and more positive as time goes by
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Anonymous Anonymous Coward, 6 Feb 2016 @ 9:27am

Re: Re: Re:
Some of the 'corrections' autocorrect comes up with are hilarious. Just like the suggestions the spell checker comes up with when it doesn't recognize a correctly spelled word that it does knot ken.
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Anonymous Coward, 6 Feb 2016 @ 9:56am

People do not share their metadata with the rest of the world. Without going to a lot of expense, I can't own a Stingray. I can't legally use it if I have it. If I call you then I am choosing to contact you. I am not choosing to share that with the rest of the world because it's a private conversation.

Likewise, cell phones don't work without the telcom. But the telcom is not required to share my info with the rest of the world either. It takes a warrant to obtain that info legally by LEO. These laws were in effect long before cell phones came on the scene. Just because it's a bit of an inconvenience to do things legally doesn't mean you have the right as LEO to just up and break in someone's home without a warrant. LEO has no right to look in someone's home for evidence with out proper procedure of a search warrant. The right to privacy may be inconvenient to LEOs but it is the law.

Breaking the law to enforce the law is what is the problem here and no amount of 'we should be able to' gets you around that.
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CanadianByChoice (profile), 6 Feb 2016 @ 11:03am

Where to start?
There are so many things wrong with their arguements that it's hard to know where to start ....
The only data I "voluntarily" share with the phone company is the number of the person I want to call. I am aware that there is more data sent from my phone, but I was never given a choice about that, so the term "voluntary" doesn't apply. Even so, why should I **not** have an expectation that the phone company will respect my privacy?
Phone meta-data is not "shared with the world" ... I'd have a difficult time even getting my OWN from the phone company (other than call info), let alone anyone elses. So much for "sharing with the world"!
Next, we have "who do I (in)voluntarily share data with?" Easy - the phone company, via their towers. At no point do I agree to connect to any other transceiver (such as a Stingray). Those are not cell towers, and there is absolutely NO agreement to connect to them.
Even the "pen register" stuff - I have less issue with pen-register searches if they were done as originally intended. They only returned data on when and what number was called - absolutely NOTHING else.
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tqk (profile), 6 Feb 2016 @ 3:47pm

Who keeps hiring these idiots?!?
The last brief it filed in this criminal prosecution claimed "everyone knows" phones generate location data, therefore there's no expectation of privacy in this information.

Everyone knows other people have sex. So, should we expect privacy in our bedrooms? We all also spend time alone in bathrooms, showering, crapping, ...

How can anyone be taken at all seriously after spouting garbage like this? Why's this person still have a job? They should be in an institution if this is the best they can come up with. Society has a moral obligation to protect people like this from harming themselves.
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tqk (profile), 6 Feb 2016 @ 4:40pm

Re: Re:
Once arrested you have no rights, which is essentially true.

I beg your pardon, but that's nowhere near true. You have a right to a fair trial by a jury of your peers. A fair trial includes evidence against you lawfully obtained, if necessary with a warrant signed by an (ostensibly) impartial judge. You have a right to privacy in your person and effects until a judge is convinced by the authorities of probable cause that the authorities are then allowed to invade said privacy.

I'm very much in favor of punishing convicted murderers, but come on cops! Put your back into it, ffs! You've put away (railroaded) far too many innocents over the years for us to just trust you any more. Stop cutting corners and being lazy! Do your jobs as we expect them to be done.

With probable cause, any judge will be happy to sign that warrant, so why's it such a burden for you to get them?
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tqk (profile), 6 Feb 2016 @ 4:54pm

Re:
It really upsets me to hear that prosecutors are trying to set such a poor precedent in order to win a case.

It really upsets me that if they get this pig to fly, it'll be open season on all of us and we'll be powerless to defend ourselves from their mistaken assumptions. Innocent until proven guilty is such an archaic concept, yes? Who needs that mouldy old thing other than obviously guilty criminals in this day and age?
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tqk (profile), 6 Feb 2016 @ 5:05pm

Re:
"Prosecutors Argue Cell Site Location Data Is Something Every User Shares With 'The Rest Of The World'"

Then... can I have it?

If you're a LEO and can show probable cause, sure. If not, we'd like to speak to you and understand what you're doing trying to invade the privacy of your fellow citizens, which you've no right to do. You can start by showing us some identification; driver's license, passport, ... Understand anything you say or do may be used against you in a court of law and lying to an officer of the peace is a felony punishable by fines and/or imprisonment.
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tqk (profile), 6 Feb 2016 @ 6:06pm

Re: Shared with who ...
The police inserted their equipment in place of the cell tower. That goes beyond simply tapping a phone line which does require a warrant.

You'd think they'd know if they went before a judge and told them they were hunting for a murderer, s/he'd be overjoyed to sign that warrant.

So, ... I just don't get it. WTF is their problem with "get a warrant"? Do they just hate explaining themselves to anyone including judges? Well, hire some doofus lawyer to handle that for them. S/He talks to the judge and gets the warrant and you get it from him/her and bust the bastard. Smiple [sic]. C'mon guys!
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tqk (profile), 6 Feb 2016 @ 6:18pm

Re: Re: So how much does a cell simulator device cost?
You can't. It's against FCC regulations.

Meaning, the mfgr won't/can't sell you one. Even when the cops get one, they have to sign NDAs to hide the precious details from the courts, and if the judge balks, you throw out the case.

Which just stinks of suspicious !@#$ goin' on. Meaning, they're well aware this is all screwing with the Constitution.

Yet they can avoid all of this mess by being upfront with the judge and getting a warrant, so ...
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tqk (profile), 6 Feb 2016 @ 6:36pm

Re:
Sounds like people are just jealous that they don't have the ability to pick up on the broadcasting location of the PD and prosecutor at all times.

I imagine career criminals, murderers, dope dealers, kiddie-fiddlers & etc. would love to have that sort of thing at all times.

I'm none of the above. I couldn't care less where the cops and prosecutor are until I need them. Why're they so frigging defensive about people like me that they need to stick their noses between me and my ISP without a warrant and without showing probable cause?

Are you aware that since this !@#$ started to get leaked, people now have access to apps they can run that tell them whether their box has been invaded by a Stingray? Where's that getting you? The LEOs made it easier for bad guys to hide by pulling this !@#$.
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That One Guy (profile), 6 Feb 2016 @ 10:16pm

Re: Who keeps hiring these idiots?!?
When your argument is stupid and/or crazy, it takes a lawyer that can say the most boneheaded things with a straight face to make it, therefor there will always be job security for lawyers with those qualifications.
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That One Guy (profile), 6 Feb 2016 @ 10:20pm

Answered your own question
With probable cause, any judge will be happy to sign that warrant, so why's it such a burden for you to get them?

'With probable cause' imposes limits, it creates a paper-trail and requires them to present evidence to a judge sufficient to get a warrant. And if all they've got is a hunch, or just a burning desire to violate the privacy of a couple dozen/hundred people just in case they can find something incriminating, all without any evidence of their actions in third-party hands, then getting a warrant becomes a bit of a bother.
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klaus (profile), 8 Feb 2016 @ 12:59am

Re: Re: Who keeps hiring these idiots?!?
Don't forget politicians...
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Anonymous Coward, 8 Feb 2016 @ 8:11am

Wait, wait wait
Doesn't the fact they they use specialized equipment destroy their case?
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Anonymous Coward, 8 Feb 2016 @ 8:24am

Gangs & Thugs With Guns
No government or agency that ignores The Constitution is given the authority to exist by The Constitution as granted by The People .
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Anonymous Coward, 9 Feb 2016 @ 7:12am

USually agree with Techdirt, but maybe not here
99% of the time I'm in complete agreement with the opinions published here, and in no way am I a fan of cell site simulators, but lets be honest here:

If I'm shouting loud enough for people to hear me outside my house and off of my property, I have no legal or moral standing to prevent them from passively hearing or actively listening to me.

Likewise, if I'm swinging a flashlight around, I cannot forbid people from receiving the light and using it to pinpoint my location, that's just ridiculous.

In addition, if I'm walking around broadcasting a radio signal, I should not be able to prevent people from determining the broadcast location. Its the same as shouting, or flashing a light.

Searching my communications is obviously a breach of privacy, but simply determining my location based on me shouting, spinning flashlights around, or broadcasting radio, should be morally and legally okay. You're publicly announcing your presence! and telling people not to listen!
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Jen d, 14 Apr 2016 @ 2:07am

Cell site simulators advancing
My experience, being mocked, is that the cell site simulator is old news. About three to four years ago , they were able to change the data they intercepted to mock me real time. They can now omitt data and add fake data real time. Access can still be denied through site simulator and calls and connections can be dropped, but the new technique allows for censoring incoming data and outgoing real time.
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