Federal Judge Says Third Party Doctrine A Perfectly 'Good Law;' No Warrants Needed To Obtain Cell Location Records
from the multiple-government-agencies-agree! dept
Back in December, a Connecticut state court ruled that tracking people in near-real time with cell site location info required the use of a warrant. Three months later, a Connecticut federal court has ruled law enforcement can obtain CSLI without a warrant, in bulk and for extended periods of time. While the opinion doesn't address the use of subpoenas and CSLI as a makeshift Stingray (for real-time tracking), it does come down firmly on the side of the government's interpretation of the Third Party Doctrine.
Here, the Government acquired information about defendant that was in the possession of a third-party—Verizon—and that the acquisition of this information did not involve any trespass upon defendant’s body, house, papers, or effects and did not involve any interference at all with defendant’s possessory interests in any of his property.The opinion leans heavily on every decision finding that there's no expectation of privacy in records held by third parties. The court makes the slightest nod to the current discussion of expectations of privacy in a world where the devices most people carry generate a wealth of information and data nearly non-stop. But it does so with wording that shows it has no interest in engaging in this discussion.
The third-party doctrine has been subject to tsunamis of criticism. But it doubtlessly remains good law today.And, like other decisions along the same lines, the court echoes the government's assertions that every cell phone user is perfectly aware their phones are sending all sorts of information to the nearest cell tower.
Defendant also contends that cell-site location information is not voluntarily conveyed to one’s cellular telephone company in the same sense or manner that one voluntarily conveys financial information to a bank as in Miller or telephone numbers to a telephone company as in Smith. Although this rationale has convinced some courts to conclude that the third-party doctrine does not apply, I do not agree. Every cell phone customer knows that his or her information is relayed wirelessly to nearby cell phone towers. It can come as no surprise that one’s cell phone company keeps records of cell towers that are accessed by and necessary to the provision and connection of every customer’s cell phone service. This is no different than every customer’s awareness that the bank keeps records of one’s checks and transactions (Miller) and that the telephone company keeps records of the telephone numbers that one calls (Smith).The court also points out there's no bright line determination as to how much is too much when it comes to acquiring location records. (The defendant raised the argument that 22 days of CSLI was excessive without the use of a warrant.) As the court logically points out, any determination on an acceptable time frame would be completely arbitrary and mostly useless.
As for the Third Party Doctrine's possible inapplicability in today's world, the court says that's up to Congress to fix, not the courts.
All that said, the critics of the third-party doctrine have strong arguments it does not adequately protect privacy—that it imposes an unacceptable and Orwellian cost of forfeiture of any claim of privacy to what we voluntarily disclose even in confidence to one another. The critics persuasively argue that the doctrine is especially problematic in our ever expanding technology-dependent and technology-intrusive society. But these are arguments for policymakers in Congress to consider, if Congress wishes to enact protections that exceed the Fourth Amendment baseline.The issue of real-time warrantless tracking remains unaddressed as this case only dealt with historic data. The question of the Third Party Doctrine is punted back to Congress -- which has proven mostly uninterested in updating outdated laws to better conform to today's reality. Even with a boot up the ladder to a higher court is unlikely to result in a re-reading of the Third Party Doctrine. The Supreme Court has only determined that long-term location tracking might need a warrant. As it stands now, the acquisition of third-party records violates no one's privacy, legally-speaking.
[...]
In the meantime, the obligation remains for the lower courts to follow the law and not to impose—no matter how techno-intellectually fashionable—an “everything is different because it’s an iPhone” theory of the Fourth Amendment.
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Filed Under: 4th amendment, cell site location info, connecticut, csli, mosaic theory, privacy, third party doctrine
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Works for me
You said it, Your Honor: "... it doubtlessly remains good law today."
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Re: Works for me
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So Nothing is Private
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Re: So Nothing is Private
HIPAA protects those even if the 4th doesn't.
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We just made the problem, it's not our job to fix it.
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Sorta like how they passed the law about not being able to publish their video tape rental histories either, once they realized that just anyone could see what tape(s) they had been renting.
Once Politicians are the target of something like this, it's amazing how quickly they will work to restrict it.
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Re:
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Brooklyn case iPhone win for Apple
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Re: Brooklyn case iPhone win for Apple
I caught the bare news from AP, but hadn't seen the pdf of the decision yet. Reading it now.
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I really want some hope left for the future. It seems any such hope will rely on the Third Party doctrine being overturned.
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Re:
Is it possible? Yes. Is it likely? Not really. The Supreme Court very rarely overturns its own decisions, and it generally requires a complete change in the political landscape before they do so. The textbook example is "separate but equal," which took 50 years and the civil rights movement to modify.
It's been about 60 years now since the third party doctrine was established, but there's little support (social or political) for altering it.
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historical location info ?
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Re: historical location info ?
That would mean upwards to 7 or 8 years. That's a lot of data.
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Re: Re: historical location info ?
I doubt you will anything on your bill referring to a charge based upon location or distance traversed. Perhaps one city is more expensive to talk to than another? I don't think it appears on your bill as a line item.
Your argument is flaccid.
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Re: Re: Re: historical location info ?
good luck, citizen...
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Re: Re: Re: historical location info ?
They have to justify where the call was made to show it was on their network, where, and when. It's basic stuff.
Your argument about my point is beyind flaccid. It's almost atrophied.
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Re: Re: Re: Re: historical location info ?
I have never seen such detail on a bill, have you? You ever attempt to get your own records? I call bullshit.
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Re: historical location info ?
Here's just the latest example.
http://www.nytimes.com/2016/02/29/business/media/see-that-billboard-it-may-see-you-too.html? _r=1
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Re: Re: historical location info ?
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Voluntary vs 'Voluntary'
Along the same vein, there are cars that include GPS tracking related to various services, and it wouldn't surprise me if some of those are built in such that you cannot choose to turn it off. According to the TPD then anyone using those makes of vehicles has 'voluntarily' handed over their location data when driving, even though they had no choice in the matter other than 'buy a different car'.
If you go to the doctor you have to provide personal data.
If you want to open up a bank account you have to provide personal data.
If you want to use the internet you have to provide the ISP personal data, which can then be linked to your activities online, which is also data that you have to provide for the internet to work.
A whole lot of the data that they are arguing is 'voluntarily' handed over is data that the person has no choice but to provide so long as they wish to be able to use the service/product.
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Re: Voluntary vs 'Voluntary'
It would be a shame it if were to stop functioning for some reason.
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Re: Voluntary vs 'Voluntary'
They seem to be taking the strictest meaning, because you could choose not to use a cell phone, go to the doctor, or have a bank account. That interpretation leads to a very problematic state of law though.
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Stupid controversy
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Re: Stupid controversy
I guess it's ok - you know because they said so.
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The nut of the issue
There's the problem. My plain reading of the fourth amendment makes it very clear to me that the "third party doctrine" violates the fourth amendment baseline.
It would be one thing if the doctrine just meant that someone who knows something about me is free to tell others. But the government insists that what it really means is that the government can legally compel those someones to give up that information in situations where could not legally compel me.
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True judge, it remains law, good law is a stretch....
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