Judge Not Impressed With Government's Warrantless 921-Page 'Peek' Into A Suspect's Cellphone

from the also-discussed:-digital-forensic-tools-and-how-not-to-use-them dept

All the DHS wanted was a warrantless "peek" at the contents of a seized iPhone. The phone, one of three seized from a person suspected of drug trafficking, was examined by the DHS, with the warrant arriving a month later. Now, all of the evidence obtained from the phone is being tossed out.

In the order granting the suppression of evidence obtained from the phone, Judge Sterling Johnson points out that the government revised its story several times during oral testimony.

DHS Special Agent Thomas Wilburt worked with the CBP to detain the suspect, Adamou Djibo, at the JFK Airport. Djibo's iPhone was taken and examined by Wilburt, who couldn't seem to accurately recall the details of the examination.

First off, Wilburt made it clear that the DHS and CBP were searching for a particular kind of "contraband."

Wilburt defined the search as one for "contraband," and when asked by the Court to define contraband stated:

If they're leaving with any weapons, any mostly it's money, I think, they're looking for. Drugs as well. Drugs, often they'll go to Bermuda. Drugs come in here and go to Bermuda, as opposed to Bermuda from here. This particular case, the main search was for money.

The problem was, Djibo's money checked out. The declaration form was legitimate and the amount of currency he was carrying was found to be legal. (Yeah, let that last part sink in for a moment…)

Wilburt then took an iPhone from Djibo and asked him to input his passcode. Or not. The opinion contains several quotes from Wilburt's testimony, many of them elusive or contradictory. The opposing counsel found it nearly impossible to get Wilburt to provide an accurate portrayal of the phone's search and seizure.

Wilburt first claimed he couldn't recall whether or not he had asked Djibo for his passcode. He then claimed he didn't know when the passcode was used to unlock the phone and access the contents.

Counsel: After they took his boarding pass and his passport, his password was put into his phone. Is that right?

Wilburt: I don't know that his password was put into his phone then, no.

[...]

Counsel: You never saw his passcode get put into his phone?

Wilburt: I don't believe it was put into his phone then, no.

[...]

Wilburt: At some point, I put it into his phone. I don't know if I did it right then or I did it back at our office.

At a second hearing, Wilburt suddenly recalled when the passcode had been entered:

I believe it was after the exam was over and after he was arrested, we went back to our office, and then I proceeded to put that code into the phone.

But he became less clear on the details of what the agents had viewed on the phone during their warrantless "peek." Wilburt testified that the phone was hooked up to a Cellebrite (a device for forensic phone examinations), where "another agent… obtained all the information off the phone that we were able to."

When the court pointed out that the warrant to search the phone didn't arrive until a month later, Agent Wilburt then claimed the Cellebrite didn't actually grab "all the information" the government wanted, despite saying it had only moments earlier.

We wanted to get more in depth in the phone. Cellebrite, as far as I know, gives you basic information.

Wilburt vastly underplays the capabilities of this forensic device. It grabs address books, call logs, pictures, videos and text messages.


In this case, it returned incriminating information, well ahead of the warrant acquisition.

The Court: Were there any text messages or incriminating calls to the original defendant?

Wilburt: At a later point looking at that report, I believe there were text messages.

Agent Wilburt, apparently attempting to legalize the illegal search of Djibo's phone, tried to redefine "contraband" -- something he originally claimed was "specifically currency" -- to cover what he had already discovered without the acquisition of a warrant. Wilburt now claimed the phone needed to be accessed to look for "evidence of currency or other crimes."

Pressed further, Wilburt admitted the phone had been seized and searched without a warrant, but the DHS had only used its forensic device to get a "peek" at the contents.

I believe after -- nothing was seized at the border search. After he was arrested, I believe they ran an initial Cellebrite report or an initial search on the phone, just a preliminary peek.

(Hilariously, when the court asked Wilburt why he would seek a warrant when Djibo had already given him the passcode, he claimed it was to avoid "violating [Djibo's] rights.")

And what did that "peek" contain?

It was emails, text messages, undeleted content. So whatever was -- when you turn on your phone and you see your text messages and your emails, that's what they obtained with this initial peek.

So, basically all the communications contained in the phone. The court asked for a copy of the "peek" and was informed a CD would be burned and sent out, as the "peek" contained "hundreds" of pages. Three weeks later, it arrived in the court's hands.

The CD contained 921 pages of materials, all of which this Court has reviewed, including hundreds of text messages, WhatsApp messages, photographs and emails. Many of the messages appear to be written in code. For example, there are text messages about orders for 600 cases of diapers and 1500 cases of wipes; "booking confirmations" to a "personal trainer" who provides various styles of "sessions;" and about stomach ailments that have to be operated on in Ghana.

The government magnanimously agreed to "suppress the peek," while less magnanimously claiming it could have obtained the info anyway, even if it hadn't known the passcode.

Further questioning of DHS Special Agent David Bauer revealed the DHS could have taken a look at Djibo's phone without needing to know his passcode.

Bauer described a "fairly new" device called an IP-Box, which can be attached to an iPhone and systematically attempt every passcode from 0000 to 9999 without shutting down [the phone]... IP-Boxes came into the fray when Apple Inc. ("Apple") refused to assist the government with cell phone break-ins.

[Here's an IP-Box in action.]


Even less magnanimously, the government disputed Djibo's attempts to suppress the evidence it had obtained with a warrant. Starting with the alleged Fifth Amendment violations, the court has this to say about the government's relocation of the investigative goal posts.

It appears from his testimony that he stood by passively until the phones were discovered, but phones are not contraband. In fact, no contraband was found by the CBP. After that, the border search ended. The line of inquiry into Djibo's telephones thereafter changed the stage because the purpose of the original search was to find currency and currency cannot be found on a phone.

Citing the Supreme Court's Riley decision, the court finds that the original, warrantless 921-page "peek" was an illegal search, tainting every piece of evidence obtained subsequently.

In his affidavit in support of the application for a search warrant, he made no mention of having already looked at 921 pages of data from the phone. Therefore, not only was the initial search unreasonable… Agent Wilburt decided it was insufficient to support the narcotics investigation. He wanted "more." For these reasons, this Court finds that the forensic search of Djibo's phone was the fruit of the illegal initial search and was unreasonable.

[...]

The government's claim that it did not rely on the initial "peek" -- despite the wording of the search warrant -- is simply unsupported by the often contradictory evidence.

[...]

In this case, the search was undertaken to find contraband or currency and neither were found. There was no need to then seek out Djibo's passcode. It had nothing to do with national security at the airport on that day… That Djibo was arrestable based on the information from the Cooperator is of no great moment. He could have been arrested, his phone seized pursuant to border authority, and a search warrant obtained before any searching occurred. Wilburt sought to sidestep these constitutional guarantees.

The DHS was so sure it could build it case that it skipped all the essentials of building a case. And now it has no evidence and a guy "caught" carrying a legal amount of cash through an airport, which isn't going to help it "win" the Drug War.

Filed Under: 4th amendment, adamou djibo, dhs, mobile phones, peek, surveillance, warrants

Defendants Counter Government's Arguments That Appeals Court Should Treat Cellphones As 'Personal Homing Beacons'

from the government-still-thinks-it's-1979 dept

A couple of weeks ago, the government petitioned the Fourth Circuit Court of Appeals for an en banc rehearing of its decision finding that the acquisition of historical cell site location information (CSLI) requires a warrant. The government used many of the arguments the dissenting opinions did -- mainly that CSLI should still be considered a "business record" under the Third Party Doctrine.

It argued that while the court had held that cellphone users do not voluntarily convey location data when they use their phones, they also do not affirmatively agree to provide service providers with time, date, number called and length of the phone. These are all just parts of how service providers do business. With this argument, the government hopes to equate the tracking technology of modern cellphones with the simple phone records created by landlines -- the latter of which can be obtained without a warrant.

Obviously, the two types of data are nothing alike. Landlines don't generate location information because they're in a fixed position. Cellphones -- on top of creating location records whenever a call is placed -- also create continuous location data as they hop towers to obtain signals, even while the phone is not in active use.

The defendants in the original case have filed their opposition to the government's request for a rehearing, arguing (naturally) that the court came to the correct decision the first time around.

The panel correctly decided that tracking a person using historical cell site location information (CSLI) for 221 days, without a warrant or probable cause, is dragnet surveillance that the Fourth Amendment prohibits. See United States v. Jones, 132 S. Ct. 945, 952 n.6 (2012). The government is essentially asking this Court to treat cell phones as personal homing beacons, providing it the wherewithal to follow and recreate a person’s every movement. The government seeks to do so without a warrant or probable cause, using the excuse that telecommunications providers also happen to know when and where an individual has gone and is going.

The difference between what the government did here and what George Orwell envisioned is that Big Brother’s constant surveillance through telescreens was stationary. But the surveillance here moves with citizens using a common household device carried in the pockets or purses of almost every American adult. Our Founders crafted the Fourth Amendment to require a warrant based on probable cause before the government could acquire such intimate information about a person. The panel’s conclusion that the government must comply with the warrant requirement before obtaining historical CSLI correctly applies the Fourth Amendment.

More to the point, the filing argues that the government's purported reason for the rehearing request is flawed in and of itself. The government noted the circuits are split in their opinions of CSLI's Fourth Amendment implications. The government says a rehearing will "resolve" the current circuit split. The defendants point out that a rehearing will do nothing of the sort, no matter how the court resolves its own differences from its first (divided) opinion. That's up to the nation's highest court to settle, should such a petition be granted.

While it is true that the majority opinion conflicts with decisions from the Fifth and Eleventh Circuits regarding the applicability of Smith and Miller and the third party doctrine, these courts had already split with the Third Circuit. The Eleventh and Fifth Circuits held that individuals have no reasonable expectation of privacy in historical CSLI because, under Smith and Miller, individuals voluntarily disclose their location data to cellular service providers…

These splits existed before the panel’s decision. The panel thoroughly addressed all the different positions in its 134-page opinion. If any further review of this issue should occur, it should be in the Supreme Court, the only forum that can clarify the fractured state of the law. A petition for certiorari is already pending in Davis, which, if granted, would resolve these splits.

The opposition filing also notes that while the government cites several court decisions in support of its Third Party Doctrine-based arguments, it relies on nothing more current than 1979's Smith vs. Maryland -- the decision that upheld the warrantless acquisition of call routing data via pen register orders. In doing so, it bypasses the most recent Supreme Court decisions on cellphones and warrants: Riley and Jones.

Riley v. California establishes that individuals have a privacy interest in historical CSLI. 134 S. Ct. 2473, 2490 (2014). Historical CSLI generated by cell phones served as one of the Court’s chief examples of “the privacies of life” included in cell phone metadata. The Court described just how intimate and detailed location data is: “Data on a cell phone can also reveal where a person has been. Historic location information . . . can reconstruct someone’s specific movements down to the minute, not only around town, but within a particular building.” Id. The Court explained the intrusive nature of CSLI tracking by adopting Justice Sotomayor’s concurrence in United States v. Jones, 132 S. Ct. 945, 955 (2012). The unanimous Riley Court thus concluded that monitoring “a precise, comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations” infringes upon an individual’s reasonable expectation of a privacy that is protected by the Fourth Amendment.

These findings are echoed in the appeals court's decision, but the US government wants those conclusions rolled back. A patchwork of conflicting opinions on CSLI and the Fourth Amendment won't be resolved until the Supreme Court addresses the issue directly, but until then the government apparently would like to keep its warrantless options open.

Filed Under: 4th amendment, cell site location info, csli, doj, location info, mobile phones, warrants

Sexting Teens Sentenced To A Year Without Cellphones And All The Warrantless Searches They Can Be Subjected To

from the another-triumph-of-the-justice-system! dept

Earlier this month, we discussed (or rather, ridiculed) a North Carolina's law enforcement agency's stupid and bizarre prosecution of two teens who consensually sent explicit photos to each other. There was the first (and most familiar) layer of stupidity: the charging of both with distributing explicit material to minors (both teens were 16 at the time of the sexting). Then there was the unexpected stupidity: the charging of both for sexually exploiting themselves. This gained an additional layer of stupidity when the law treated the teens as both minors (being exploited) and adults (doing the exploiting) when processing them.

Most of the charges centered on photos taken of the teens by themselves. These nude pictures of themselves -- possessed by themselves -- were somehow criminal acts. The state's laws have ensured no teen can take/possess a naked photo of themselves without risking being prosecuted as a sex offender, even if they never distribute the photos.

The female half of the sexting duo accepted a plea bargain back in July. It now appears the male participant has done the same. The two plea agreements are substantially similar according to WRAL, which means both teens have been screwed by a "justice" system seemingly obsessed with punishing consensual (and normal) teen behavior -- statutory contortions be damned.

The terms of the plea agreements are extremely onerous, considering the acts were consensual and there was no age discrepancy between the participants. What the teens have agreed to sounds not too different than what's routinely handed to other sex offenders -- except that these teens molested no children, possessed no child porn and performed no acts of sexual violence. Comega Copening, the other participant in this heinous two-person sexting ring will be treated as a criminal not worthy of his own phone for the next 365 days. AND THAT'S NOT ALL...

Judge April Smith, tell him what he's won!

[One] year of probation. During that year... Copening must stay in school, take a class on making good decisions, complete 30 hours of community service, not use or possess alcohol or illegal drugs, not possess a cellphone and must submit to warrantless searches.

The same terms apparently apply to Brianna Denson's plea bargain as well -- as does all the attendant ridiculousness of treating two consenting teens of the same age as child pornographers of each other… and of themselves.

The remaining charge -- the one Denson and Copening have been sentenced for -- is no less ridiculous than the dismissed charges of sexually exploiting themselves. What remains are charges for "disseminating harmful material to minors," which presumes the dissemination itself was harmful, even if it was welcomed and reciprocated.

Filed Under: mobile phones, sexting, teens

Civilian Complaint Board Finds The Public And Their Cell Phones Are Foisting Some Accountability On The NYPD

from the the-camera-is-on-the-other-eye...-or-something dept

There's probably not much the NYPD will like about the latest CCRB (Civilian Complaint Review Board) report, but then again, the CCRB isn't really there to serve up the sort of stuff it likes. What it will discover is that some form of accountability is now inevitable, rather than remaining a lofty ideal thrust in its general direction by a handful of activist groups and politicians.

Cameras are changing the way complaints are investigated. The report notes that video footage relevant to CCRB investigations is leading to more substantiated complaints.

Under the preponderance of evidence standard that the CCRB must use in evaluating cases, the increased prevalence of video in force cases has led to an increased percentage of cases where CCRB can substantiate the use of improper or excessive force. The percentage of substantiated force complaints with video evidence increased from 15% in 2012, to 26% in 2013, 34% in 2014, and 45% in the first half of 2015.

Substantiated cases of abuse of authority, discourtesy, and offensive language increasingly have contained video evidence: 6% of such cases in 2012 had video evidence, as compared to 23% during the first half of 2015.

So, not great news for the NYPD. While it is seeing an overall drop in complaints (thanks largely to the scaling back of stop-and-frisk), more and more cases are being decided in favor of citizens, thanks to camera footage, most of which has been obtained by the citizens themselves. (Note that most of what's detailed in this report occurred before the NYPD's body cam pilot program began.)

While the ubiquity of cameras has begun to force a certain amount of restraint on police officers, it hasn't been able to cure them of all their bad habits.

In the first half of 2015, the highest substantiation rate by allegation was for retaliatory summons and retaliatory arrest, which were substantiated at a rate of 70% and 58%, respectively.

And despite everyone and their mother being able to produce footage, officers just keep on lying.

In the first half of 2015, the CCRB closed investigations that noted 19 allegations of false official statement, 18 of which stemmed from incidents that occurred in 2014. Those 19 allegations of false official statement are on pace to far exceed the 26 allegations noted in 2014. The reason for the significant increase is primarily the result of video evidence.

On the bright side, the number of cameras in use at any given time is likely discouraging a few would-be complainants from filing bogus paperwork.

In the first half of 2015, civilian complaints against the police decreased by 22%, as compared to the first half of 2014. The CCRB received 2,092 complaints from January through June 2015, as compared to 2,698 for the same time period in 2014. This is the lowest number of complaints since 2001.

Now for more bad news: the thing about "bad apples?" Not just a stereotype.

More than 80% of NYPD officers have had no complaints in the last 18 months, whereas 14% of officers are responsible for 100% of all complaints. Five percent of officers on the force—about 1,800—are responsible for 80% of the force complaints.

There's a good chance their fellow officers know who these problematic cops are. And yet, they remain employed. NYPD officials absolutely know who these officers are. And yet, it would appear a great many of them are still employed. If the CCRB is going to be effective, and if the NYPD brass wants to be taken seriously when it claims to care about ensuring New York's Finest only contains the finest, then these numbers will need to drop by next year's report -- both in terms of overall complaints and the number of still-employed officers generating a majority of complaints.

Filed Under: accountability, ccrb, civilian complaint review board, mobile phones, nypd, police, transparency

Intel Officials' Claims That NSA Couldn't Access Majority Of Cellphone Records Apparently Bogus

from the misrepresenting-the-haul dept

The recent Snowden documents published by the New York Times and ProPublica confirm the close relationship between AT&T and the NSA, which would explain the deafening silence the company issued in response to the first few months of leaks. (Such "partnerships" likely exist with Verizon and other providers, although nothing has been directly confirmed by leaked documents, and such partnerships may have done a bit of "dissolving" shortly after the leaks began.)

But the documents also highlighted the difference between what NSA officials claimed they were getting and what they were actually getting from telcos. In early 2014, officials claimed they were only obtaining between 20-30% of domestic call records. According to unnamed "current and former officials," the explosion of cellphone use was leaving the NSA's bulk collection programs in the dust.

These documents show there's a huge discrepancy between the unofficial "official" statements and the NSA's actual capabilities, as the ACLU's Kade Crockford points out.

The New York Times reports on documents disclosed by former NSA contractor and whistleblower Edward Snowden:

"In 2011, AT&T began handing over 1.1 billion domestic cellphone calling records a day to the N.S.A. after “a push to get this flow operational prior to the 10th anniversary of 9/11,” according to an internal agency newsletter. This revelation is striking because after Mr. Snowden disclosed the program of collecting the records of Americans’ phone calls, intelligence officials told reporters that, for technical reasons, it consisted mostly of landline phone records."

I must quibble a bit with the New York Times excellent reporting here, only to suggest that what's "striking" about the discrepancy between what journalists reported and the truth isn't the fact that the NSA would lie to journalists. What's striking is that journalists continue to print official, often anonymous claims about government surveillance programs without a shred of evidence that those claims are true.

This has long been the problem with journalists' reliance on "unnamed government sources." Without a name to attach the statement to, no one can be held accountable for lying to the American public. While many sources would not comment at all without the protection of anonymity, the statements issued are seldom questioned by entities with an obligation to challenge anonymous assertions.

On the other hand, emptywheel's Marcy Wheeler points out these claims may have an element of truth, but only because Snowden's leaks and problematic cell location data (which isn't specifically covered by Section 215) was preventing the agency from collecting all it wanted to, or perhaps all it used to.

We know from the Congressional notice AT&T was willing to strip [location data]. For a lot of reasons, it’s likely Verizon was unwilling to strip it.

This is one of the possible explanations I’ve posited for why NSA wasn’t getting cell data from Verizon, because any provider is only obliged to give business records they already have on hand, and it would be fairly easy to claim stripping the cell location data made it a new business record.

Which is another important piece of evidence for the case made against AT&T in the story. They were willing to play with records they were handing over to the government in ways not required by the law.

Though who knows if that remain(ed) the case? To get to the 30% figure quoted in all the pieces claiming NSA wasn’t getting cell data, you’d probably have to have AT&T excluded as well. So maybe after the Snowden releases, they, too, refused to do things they weren’t required to do by law...

So, it could very well be that the NSA wasn't getting all the cell records it wanted to, making these claims mostly factual. But the Wall Street Journal and New York Times both attribute quotes to "former officials" as well, which would include officials in place prior to the Snowden leaks. If the leaks resulted in a sudden reluctance to provide these records, it would only have occurred after June 2013. The questionable statements were made in the first few months of 2014. That's not much of a gap, especially if former officials are speaking from their personal experience.

Maybe the NSA was only getting 20-30% of what it was seeking. Or maybe it only wanted to give that impression. Nothing about the statements reflect a sudden downturn in collections. Instead, they portray it as an ongoing problem. The underlying issue is the secrecy of surveillance programs, which leads to statements that can't be confirmed (or refuted) until evidence is provided. And these officials aren't going to hand out this info. It has to come from whistleblowers and leakers. The government can skate by on lies and misperceptions, especially when national security is involved.

Filed Under: lies, metadata, mobile phones, nsa, partnership, phone records, section 215, surveillance
Companies: at&t

Maryland Court Says It Would Still Be Equating A Smartphone With A 'Crumpled Cigarette Pack' If Not For Riley Decision

from the way-to-adapt-to-the-realities-of-the-new-millenium dept

The Supreme Court's Riley decision said law enforcement officers must obtain warrants to search cell phones incident to an arrest. A recent Maryland Appeals Court decision prevented the suppression of evidence obtained via a warrantless search of a smartphone. Why? Well, for a few reasons, most of which seem convoluted and almost inexplicable considering the context. (via John Wesley Hall of FourthAmendment.com)

The opinion opens with this:

Petitioner appealed the judgment of conviction to the Court of Special Appeals and, while the case was pending in that court, filed a petition for writ of certiorari, which we granted. We then stayed all proceedings in this case until the United States Supreme Court issued its decisions in Riley v. California, cert. granted, 134 S. Ct. 999 (2014), and United States v. Wurie, cert. granted, 134 S. Ct. 999 (2014). On June 25, 2014, the Supreme Court issued a consolidated opinion in those two cases. Riley v. California, 134 S. Ct. 2473 (2014).

Despite staying the case to hear from the Supreme Court on this issue, the Maryland court went in the other direction once that decision had been handed down. Considering the circumstances, this is probably the right decision, but one wonders why they bothered staying the case if it was going to rely on pre-Riley caselaw anyway.

Officers interviewing a suspect about a robbery took a look at his cell phone and found unopened text messages pertaining to the criminal act. The defendant sought suppression of this warrantless search of his phone but the court found that because the search had occurred before the Riley decision, the officers here were covered under the "good faith" exception because no warrant requirement existed at that point.

This would be all well and good (if a little bizarre considering the stay issued for the pending, but disregarded, Riley decision) if the court hadn't decided to quote previous Supreme Court decisions so badly outdated they only serve to make the Maryland court look utterly ridiculous.

The suspect here had a smartphone. The Maryland Court exhumes the corpse of the 1973 US v. Robinson decision and applies it to the 2011 search.

The Supreme Court further developed the scope of the search incident to arrest exception in United States v. Robinson, 414 U.S. 218 (1973). Robinson had been arrested for driving on a suspended license. The arresting officer, while conducting a pat down of Robinson, felt an object in his coat pocket that the officer could not identify. The officer removed that object—a crumpled cigarette packet—opened it, and found capsules of heroin inside. Id. at 220-23. The Court upheld the warrantless search as a proper search incident to Robinson’s arrest.

This is a court telling an appellant that -- if Riley had not gone the way it did -- it would still consider a smartphone loaded with personal information and a connection to web-based services offering even more personal information to be roughly equivalent to whatever might fit inside a crumpled cigarette pack.

Now, I have no problem with the court granting the "good faith exception," considering the search occurred pre-Riley, but I do have my concerns about a court that will apparently only consider the implications of technological advances when the Supreme Court basically forces it to.

Attempting to apply a forty-year-old decision involving a small cardboard box to today's smartphones is to indicate the court either has performed no serious independent thinking about the subject, or has somehow managed to escape dealing with relevant cases that might force it confront the fact that a computer that fits in someone's pocket is not even remotely equivalent to the "contents" of said pocket.

To be fair, the DOJ has been equally unwilling to cede ground to logic and has argued for similarly non-comparable items to be deemed comparable by the nation's highest court. But this is to be expected from an entity that acts on behalf of the nation's law enforcement when presenting its arguments in court (despite having the word "Justice" in its name). A state appeals court, on the other hand, is actually supposed to be acting on behalf of the slippery term "justice," and citing outdated caselaw does very little to serve that purpose.

Filed Under: 4th amendment, maryland, mobile phones, privacy, riley, searches, supreme court

Summer Of The 4th Amendment: Appeals Court Says Mobile Phone Location Is Protected Under 4th Amendment

from the secure-in-their-persons,-houses,-papers,-and-effects dept

It appears that the 4th Amendment is up for a bit of a revival this summer. Last week, we wrote about an important ruling in a Northern California district court saying that mobile phone location info -- officially known as "Cell Site Location Info" or "CSLI" -- was protected by the 4th Amendment, meaning the government couldn't scoop it up without a warrant. The ruling was excellent and detailed, but we noted there would be inevitable appeals.

Now, in a similar case that had already been decided the other way, the 4th Circuit appeals court has overturned that ruling and agreed that mobile phone location info requires a warrant. This is another big victory for the 4th Amendment.

Appellants Aaron Graham and Eric Jordan appeal their convictions for several offenses arising from a series of armed robberies. Specifically, Appellants challenge the district court’s admission of testimonial and documentary evidence relating to cell site location information (“CSLI”) recorded by their cell phone service provider. We conclude that the government’s warrantless procurement of the CSLI was an unreasonable search in violation of Appellants’ Fourth Amendment rights.

Unfortunately, the court says that it doesn't matter in this case because of the "good faith" exception. We've discussed in the past the problems of the "good faith exception," which basically says it's okay to violate the 4th Amendment so long as law enforcement doesn't know it's violating the 4th Amendment. From a basic rights perspective, that seems ridiculous. But, at the very least, this ruling still should make it clear that going forward a warrant is necessary.

The appeals court ruling goes pretty much along the lines you'd expect, pointing out that there's an expectation of privacy in the CSLI and therefore a warrant is needed. It rejects the government's assertion that Sprint/Nextel's privacy policy was agreed to by the defendants and thus waived any privacy expectation.

As an initial matter, we are not persuaded that, as the district court stated, Sprint/Nextel’s privacy policy disproves Appellants’ claim that they had an actual expectation in the privacy of their location and movements. The privacy policy in effect at the time Sprint/Nextel disclosed CSLI to the government stated as follows:

Information we collect when we provide you with Services includes when your wireless device is turned on, how your device is functioning, device signal strength, where it is located, what device you are using, what you have purchased with your device, how you are using it, and what sites you visit.

... First, the policy only states that Sprint/Nextel collects information about the phone’s location – not that it discloses this information to the government or anyone else.

Second, studies have shown that users of electronic communications services often do not read or understand their providers’ privacy policies.3 There is no evidence that Appellants here read or understood the Sprint/Nextel policy.

The court relies on a series of relatively recent Supreme Court decisions to make it clear that the 4th Amendment applies in this case:

Taken together, Karo, Kyllo, and the views expressed in Riley and the Jones concurrences support our conclusion that the government invades a reasonable expectation of privacy when it relies upon technology not in general use to discover the movements of an individual over an extended period of time. Cell phone tracking through inspection of CSLI is one such technology. It is possible that the CSLI for a particular cell phone is not very revealing at all because, for instance, the phone has been turned off or it has made few or no connections to the cellular network. But the government cannot know in advance of obtaining this information how revealing it will be or whether it will detail the cell phone user’s movements in private spaces.... We hold, therefore, that the government engages in a Fourth Amendment search when it seeks to examine historical CSLI pertaining to an extended time period like 14 or 221 days.

It's a good ruling and it looks like the courts are building up a series of rulings on this issue that will inevitably reach the Supreme Court in the near future...

Filed Under: 4th amendment, 4th circuit, csli, expectation of privacy, location info, mobile phones

We're Still Cultural Nitwits When It Comes To Cell Phone Etiquette And Enforcement

from the slow-learners dept

Apparently we're still rather idiotically feeling out the boundaries of cell phone etiquette and common sense after decades of cellular phone experience. Last week a Broadway play attendee nonchalantly climbed on stage before a production of Hand of God to use the set's (inoperable and quite fake) power outlet. When tracked down by one news outlet, the man proudly proclaimed that he was drunk, and that he needed to charge his phone just then because "girls were calling all day. What would you do?" There's a video of said nitwit's public apology to the theater community making the rounds.

We're apparently not much better when it comes to enforcing cell phone etiquette. A week later, Actor Patti LuPone broke proscenium and ripped a cell phone out of a theater attendee's hands after the audience member wouldn't stop texting during a performance. LuPone issued a statement shortly thereafter suggesting that idiots without etiquette have forced her hand in the matter, and she's not thrilled to be forced into the role of audience baby sitter:

We work hard on stage to create a world that is being totally destroyed by a few, rude, self-absorbed and inconsiderate audience members who are controlled by their phones. They cannot put them down. When a phone goes off or when a LED screen can be seen in the dark it ruins the experience for everyone else - the majority of the audience at that performance and the actors on stage. I am so defeated by this issue that I seriously question whether I want to work on stage anymore. Now I’m putting battle gear on over my costume to marshall the audience as well as perform.

Across the pond, police have shown they're still learning the lines of cell phone etiquette as well, after UK Transit police had to walk back a recent decision to arrest a 45-year-old man for "abstracting electricity" by charging his iPhone via a train power outlet:

"She said I’m abstracting electricity. She kept saying it’s a crime. We were just coming into the station and there happened to be about four police officers on the platform.

"She called to them and said: 'This guy’s been abstracting electricity, he needs to be arrested'."

Some Internet forum users state that the outlets are generally reserved for cleaning the trains, and often feature stickers stating "not for public use." Still, if transit authorities don't want people using the outlets, it makes sense to make them less accessible. The law in question is also pretty clearly focused on cheating utility meters and is reserved for "high value" theft where the victim faces "substantial loss," making the case a bit of a tough sell. As a result, the police subsequently "de-arrested" the man after realizing that they were "abstracting" common sense from their daily enforcement practices:

"We were called to Camden Road London Overground station on Friday 10 July to a report of a man becoming aggressive when challenged by a PCSO about his use of a plug socket onboard an Overground train."

"Shortly after 3.30pm, a 45-year-old man from Islington was arrested on suspicion of abstracting electricity, for which he was de-arrested shortly after. He was further arrested for unacceptable behaviour and has been reported for this offence."

Given that Motorola researcher Martin Cooper designed the first cell phone back in 1973, you'd think that after 42 years of experience with the devices we'd be a little better at understanding the socially-acceptable norms for using them -- and preventing their use. Of course given that people still talk in movie theaters, often don't pay attention to what their kids are doing, and frequently treat one another abysmally, that inconsiderate boneheadedness certainly isn't the fault of the technology.

Filed Under: abstracting energy, charging, etiquette, mobile phones