Secret Service Latest To Use Data Brokers To Dodge Warrant Requirements For Cell Site Location Data

from the it's-just-Supreme-Court-precedent dept

Another federal law enforcement agency has figured out a way to dodge warrant requirements for historical cell site location data. The Supreme Court's Carpenter decision said these records were covered by the Fourth Amendment. But rather than comply with the ruling, agencies like the CBP and ICE are buying location data in bulk from private companies that collect this data, rather than approach service providers with warrants.

These agencies argue they aren't violating the Constitution because the data is "pseudonymized" and doesn't specifically target any single person. But even cops using "reverse" warrants are still using warrants to gather this data. Federal agencies apparently can't be bothered with this nicety, preferring to collect information in bulk and work backwards to whatever it is they're looking for.

The Secret Service is the latest federal agency to buy location data from Locate X -- one of the companies already providing cell site location data to CBP and ICE. Joseph Cox has the details for Motherboard.

The Secret Service paid for a product that gives the agency access to location data generated by ordinary apps installed on peoples' smartphones, an internal Secret Service document confirms.

The sale highlights the issue of law enforcement agencies buying information, and in particular location data, that they would ordinarily need a warrant or court order to obtain. This contract relates to the sale of Locate X, a product from a company called Babel Street.

Motherboard uncovered the Secret Service's warrant evasion through a public records request.

The contract that mentions Locate X stretches from September 28, 2017 to September 27, 2018, according to the document. With the modifications to an existing Secret Service and Babel Street contract, the total amount increased by $35,844 to $1,999,394, the document adds.

This corroborates statements made by a former Babel Street employee, who told journalists at Protocol back in March that the Secret Service was also buying location data, along with CBP and ICE.

This location data isn't pulled from cell towers. Perhaps this is why agencies feel comfortable ignoring the Carpenter decision. But while there won't be as many data points, there will still be plenty of data to sift through. Multiple apps collect location data. Some of them sell this data to data brokers who then sell this to marketing firms and/or the US government.

Senator Ron Wyden is, of course, all over this.

“It is clear that multiple federal agencies have turned to purchasing Americans’ data to buy their way around Americans’ Fourth Amendment Rights. I’m drafting legislation to close this loophole, and ensure the Fourth Amendment isn’t for sale,” Wyden’s statement added.

If there's a loophole, it will be exploited. And federal agencies are going to want this loophole kept open. Since it's unlikely the government is informing courts about this use of data, there have been no courtroom challenges of this practice, leaving the feds free to operate in this precedent-free void. The government is reading the letter of the Supreme Court's ruling, feeling the warrant requirement only applies to data collected from service providers. But other courts have read that ruling to cover more than what the justices specified. Federal agencies are playing to the edges of the Fourth Amendment right now and it might come back to hurt them.

Filed Under: 4th amendment, cell site location data, data brokers, secret service, warrants

NY Times Shows The Scope Of The Cell Location Data Scandal Nobody's Doing Anything About

from the ill-communication dept

First there was the Securus and LocationSmart scandal, which showcased how cellular carriers and data brokers buy and sell your daily movement data with only a fleeting effort to ensure all of the subsequent buyers and sellers of that data adhere to basic privacy and security standards. Then there was the blockbuster report by Motherboard showing how this data routinely ends up in the hands of everyone from bail bondsman to stalkers, again, with only a fleeting effort made to ensure the data itself is used ethically and responsibly.

Throughout it all, government has refused to lift a finger to address the problem, presumably because lobbyists don't want government upsetting the profitable apple cart, or because too many folks still labor under the illusion that this sort of widespread dysfunction will be fixed by a clearly broken and unaccountable US telecom market.

Enter the New York Times, which this week grabbed a hold of a massive data set from a broker, highlighting the scope of this problem. The dataset includes 50 billion location pings from the phones of more than 12 million Americans as they traveled around Washington DC, New York, San Francisco and Los Angeles. In this case the data came from a location data company that hoovers the data up from apps, though cellular carriers and appmakers alike have been equally complicit.

The report is part of a 7-part series highlighting just how big the problem has become, and just how little we're doing about it:

Each piece of information in this file represents the precise location of a single smartphone over a period of several months in 2016 and 2017. The data was provided to Times Opinion by sources who asked to remain anonymous because they were not authorized to share it and could face severe penalties for doing so. The sources of the information said they had grown alarmed about how it might be abused and urgently wanted to inform the public and lawmakers.

While cellular carriers have promised that they no longer sell that data after a parade of scandals, nobody has independently confirmed that claim. Nor has anybody asked what they're doing with the data already collected over the last decade. And despite claims of an investigation at the FCC, there are indications the agency is dragging its feet on the inquiry to help run out the clock on the statute of limitations for carrier culpablity. This is the ultimate cost of regulatory capture: profits trump all else, including basic, fundamental human rights.

While carriers and data brokers continue to say this is all just fine because people consent to be tracked and the data is anonymized, it's nice to see the Times point out that studies routinely highlight that anonymized data is far from anonymous. The Times found it wasn't particularly difficult to identify individuals and build detailed profiles based on their movement data:

Reporters hoping to evade other forms of surveillance by meeting in person with a source might want to rethink that practice. Every major newsroom covered by the data contained dozens of pings; we easily traced one Washington Post journalist through Arlington, Va.

In other cases, there were detours to hotels and late-night visits to the homes of prominent people. One person, plucked from the data in Los Angeles nearly at random, was found traveling to and from roadside motels multiple times, for visits of only a few hours each time. While these pointillist pings don’t in themselves reveal a complete picture, a lot can be gleaned by examining the date, time and length of time at each point.

The perils of what we're building here should be obvious. And it's fairly obvious that even bigger scandals on this front are waiting in the wings until we collectively demand some basic privacy guidelines for the internet era. This again highlights the myopia in DC policy circles, which have been focused in recent years almost exclusively on the perils of "big tech," while "big telecom" gets a free pass despite engaging in the exact same (or worse) behavior.

Filed Under: cell site location data, data brokers, location data, privacy

Turns Out Cell Phone Location Data Is Not Even Close To Accurate, But Everyone Falls For It

from the because-of-course dept

We've frequently talked about law enforcement and the intelligence community accessing and making use of cell site location data, which looks to figure out where people are based on what cell towers they're connected to. Law enforcement likes to claim that it doesn't need a warrant for such data, while the NSA has tested a pilot program recording all such data, and says it has the legal authority to collect it, even if it's not currently doing so.

However, as anyone with even a basic geometry education recognizes, which cell tower you're connected to does not give you a particularly exact location. It can be useful in putting someone in a specific (wide) area -- or, much more useful in detailing where someone is traveling over long distances as they repeatedly switch towers in a particular direction. But a single reading does not give you particularly exact location details. I had naturally assumed that most people understood this -- including law enforcement, lawyers, prosecutors and judges -- but it turns out they do not. A rather depressing story in The Economist notes that, thanks to this kind of ignorance (combined with bogus cop shows on TV that pretend cell site data is good for pinpointing locations), cell site location data is frequently used to convict innocent people. The story opens with a ridiculous example, in which a woman was pressured into a plea bargain based on totally false claims about tower location data:

SOMEONE strangled a prostitute in Portland, Oregon in 2002. The police arrested Lisa Roberts, the victim’s ex-lover, who spent more than two years in custody awaiting trial. Shortly before the trial the prosecutor told Ms Roberts, via her lawyer, that tower data collected by Verizon, her mobile-telephone network, showed precisely where she was at the time of the murder. As her lawyer recalled, the prosecutor said Ms Roberts could be “pinpointed” in a park shortly before the victim’s naked and sexually assaulted corpse was found there. She was told she faced 25 years to life in prison. She accepted a deal to plead guilty and serve 15 years.

But the high-tech evidence against her was bunk. Routinely collected tower data can place a mobile phone in a broad area, but it cannot “pinpoint” it. That would require a special three-tower “triangulation”, which cannot reveal past locations. It took a decade for Ms Roberts’s guilty plea to be thrown out. On May 28th she left prison, her criminal record clean, after nearly 12 years in custody.

Obviously, things like GPS do allow for much more precise targeting of location (which may be why the NSA is focusing on that instead of cell site location data), but too many people confuse cell site location data with GPS. What's ridiculous is that this mistake isn't just being made by random people -- but prosecutors and lawyers responsible for criminal cases that can destroy an innocent person's life.

This really points to a larger issue: people have this tendency to believe that technology can answer all questions. The NSA's fetishism of surveillance via technology is an example of this. There's data there, so it becomes all too tempting to assume that the data must answer any possible question (thus, the desire to collect so much of it). But the data and the interpretations it can lead to are often misleading or simply wrong. And that's especially true when dealing with newer technologies or forms of data collection. That the criminal justice system could go decades without everyone recognizing the basic geometric limits of cell site location data based on a single cell is... both astounding and depressing. But it's also a reminder that we shouldn't assume that just because some evidence comes from some new-fangled data source it's automatically legitimate and accurate.

Filed Under: accuracy, cell site location data, gps, location data, plea bargains, prosecutions

Score One For The 4th Amendment: Appeals Court Says Police Need A Warrant To Track Phone Users' Location

from the big-win dept

A very big and important ruling came out yesterday in the 11th Circuit appeals court, saying that police need to get a warrant to track someone's location (via their mobile phone locations). This is a big deal, as we've been discussing for years. Many state courts have issued similar rulings, but many federal courts had gone the other way. While a few district courts had agreed that a warrant was needed, having an appeals court say so is a big deal.

In this case, the defendant, Quartavius Davis, was accused of a bunch of crimes, involving robbing a bunch of stores. Among the variety of evidence against him was cell phone location data -- specifically 11,606 location records. Davis argued that the data was collected without a warrant, violating his 4th Amendment rights (he also has other issues with the way the case was handled and challenges some other aspects as well, but we'll focus on the 4th Amendment issue concerning his location data). The court notes that other courts are still struggling with this issue, and looks to the Supreme Court's famous ruling in the Jones case, involving whether or not a warrant is needed to attach a GPS device to a car. As we noted then, that ruling stopped short of really examining if gathering up location data required a warrant, though some of the side opinions (mainly the concurrence by Justice Sotomayor) discussed the idea. This ruling looks back at some history around the 4th Amendment, and the evolving view concerning "trespass theory" vs "privacy theory," before digging into Jones. The Jones case, you may recall, was decided on the idea that putting the device on the car was a form of "trespass," leaving aside the privacy aspect. But, obviously, this case is different. Thankfully, the court takes some instruction from the concurrences that do discuss privacy theory, and see how they apply in this case.

But, in an important way, the court seems to go even further. While much of the focus in the Jones case was on the "mosaic theory" of linking together a bunch of individual location data points to create a picture that reveals something people expected to be kept private, this ruling notes that even a single data point may be enough to violate the expectation of privacy:

One’s cell phone, unlike an automobile, can accompany its owner anywhere. Thus, the exposure of the cell site location information can convert what would otherwise be a private event into a public one. When one’s whereabouts are not public, then one may have a reasonable expectation of privacy in those whereabouts. Therefore, while it may be the case that even in light of the Jones opinion, GPS location information on an automobile would be protected only in the case of aggregated data, even one point of cell site location data can be within a reasonable expectation of privacy. In that sense, cell site data is more like communications data than it is like GPS information. That is, it is private in nature rather than being public data that warrants privacy protection only when its collection creates a sufficient mosaic to expose that which would otherwise be private.

The court also rejects the idea that the information is not private just because it puts the defendant near the scene of a crime:

The prosecutor at trial stressed how the cell phone use of the defendant established that he was near each of six crime scenes. While committing a crime is certainly not within a legitimate expectation of privacy, if the cell site location data could place him near those scenes, it could place him near any other scene. There is a reasonable privacy interest in being near the home of a lover, or a dispensary of medication, or a place of worship, or a house of ill repute. Again, we do not see the factual distinction as taking Davis’s location outside his expectation of privacy. That information obtained by an invasion of privacy may not be entirely precise does not change the calculus as to whether obtaining it was in fact an invasion of privacy.

And, finally, the court addresses the famed "third party doctrine" issue, of whether or not Davis gave up his right to privacy to this information because it's been "given" to a third party (i.e., the mobile phone operators). The court is not convinced and (thankfully) explains how Smith v. Maryland (that key case that so many third party doctrine claims rely on) doesn't make sense here, relying on a ruling from the 3rd Circuit, stating that because Davis did not "voluntarily" shared this information with the mobile operator, the third party doctrine does not apply (amusingly, the court even cites the government's own arguments to support the lack of a voluntary handover):

The reasoning in Smith depended on the proposition that “a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties,” .... The Third Circuit went on to observe that “a cell phone customer has not ‘voluntarily’ shared his location information with a cellular provider in any meaningful way.” That circuit further noted that “it is unlikely that cell phone customers are aware that their cell phone providers collect and store historical location information.” ... (emphasis added). Therefore, as the Third Circuit concluded, “when a cell phone user makes a call, the only information that is voluntarily and knowingly conveyed to the phone company is the number that is dialed, and there is no indication to the user that making that call will also locate the caller.” ... Even more persuasively, “when a cell phone user receives a call, he hasn’t voluntarily exposed anything at all.” ....

Supportive of this proposition is the argument made by the United States to the jury. The prosecutor stated to the jury “that obviously Willie Smith, like [Davis], probably had no idea that by bringing their cell phones with them to these robberies, they were allowing [their cell service provider] and now all of you to follow their movements on the days and at the times of the robberies . . . .” Just so. Davis has not voluntarily disclosed his cell site location information to the provider in such a fashion as to lose his reasonable expectation of privacy. In short, we hold that cell site location information is within the subscriber’s reasonable expectation of privacy. The obtaining of that data without a warrant is a Fourth Amendment violation.

That said, the court still decides to not overturn the original ruling, saying that the court ruled in good faith. However, it still means that future cases will require a warrant for this information (within areas covered by the 11th Circuit). It seems likely that this, or another similar case in a different circuit, will eventually make it to the Supreme Court, but this is a very good ruling in the meantime.

Filed Under: 11th circuit, 4th amendment, cell site location data, gps, jones, location data, mosaic theory, privacy, quartavius davis, third party doctrine, warrant