Treasury Oversight Says IRS Should Consider Getting Warrants Before Buying Location Data From Data Brokers

from the everyone-reads-Carpenter-differently dept

Last October, Senators Ron Wyden and Elizabeth Warren asked the IRS's oversight to take a look at the agency's use of third-party data brokers to obtain cell site location info harvested from phone apps. This new collection of location data appeared to bypass the Supreme Court's Carpenter decision, which said cell site location info was protected by the Fourth Amendment.

This means warrants were needed to obtain this information from cell service providers. Multiple government agencies -- including the CBP, DEA, and Defense Department -- appear to believe approaching data brokers a couple of steps removed from the location data collection process aren't affected by this warrant requirement. While both cell site location info from cell providers and bulk data from brokers can accomplish the same long-term tracking of individuals, the latter tends to be less detailed since it sometimes requires apps to be in use to produce location data, rather than just connected to a cell tower.

The IRS may have believed no warrants are needed to buy bulk data from brokers, but its oversight disagrees. The Treasury Department Inspector General says the 2018 Supreme Court ruling may cover this data as well.

A new Treasury Department watchdog report warns that law-enforcement agencies may not be on firm legal footing when they use cellphone GPS data drawn from mobile apps without obtaining a warrant first.

In a review of the Internal Revenue Service’s use of a commercial platform that allowed the agency to track cellphones, the Treasury Department inspector general for tax administration said that a landmark 2018 Supreme Court case might preclude the warrantless tracking of criminal suspects through location data generated by weather, game and other apps. The report encouraged stricter controls on use of the data.

But it's only a "may." The report [PDF] says the IRS should consider seeking a warrant before obtaining this data in the future. However, the IRS hasn't purchased data for a few years now because it doesn't consider it useful. And its only utilization of data broker Venntel occurred before the Supreme Court's Carpenter decision was handed down.

According to the purchase order, the subscription was for one year from September 9, 2017, through September 8, 2018, at the cost of $19,872. CI stated that the single-user license subscription was used exclusively by a single field office in the Cyber Crimes Unit, and Venntel was only utilized on a few specific occasions and did not produce effective results. According to CI, the last use of this database was in March 2018…

That would be two months before the Carpenter decision, which would make it a good faith effort if anyone were to challenge this evidence. But if anyone was going to, they'd likely already have done it. And the IRS's limited use (at least of this vendor) reinforces the IRS's claims that bulk location data from brokers doesn't help it with investigations.

Even given the Supreme Court's 2018 decision, IRS officials still seem to believe if the agency make use of this in the future, agents still wouldn't need to seek a warrant.

Carpenter v. U.S. was decided in June 2018. The last known attempt to use the Venntel product was March 2018, before the Supreme Court decision. Nevertheless, it is our understanding that the Carpenter decision concerned historical Cell Site Location Information which is distinct from the opt-in app data available on the Venntel platform.

Ah, but that's the same argument the government made to attempt to avoid a search warrant requirement: that the location data was voluntarily obtained from cellphone users. The Supreme Court disagreed, saying the data was collected continuously, even when owners weren't actively using their cellphones. If US government agencies continue to seek this data without a warrant, they're likely going to start generating caselaw contradicting their presumptions.

Treasury Oversight suggests warrants. The IRS suggests they aren't necessary. For now, the only thing preventing internal conflict is the IRS's determination that this particular form of cell location data is mostly useless.

Filed Under: 4th amendment, csli, data brokers, elizabeth warren, inspector general, irs, location info, oversight, privacy, ron wyden, treasury department, warrant

Texas Court Says State's Constitution Protects Cell Site Location Info

from the guess-Texas-won't-be-seceding-from-Fourth-Amendment dept

The Texas Criminal Court of Appeals has looked at the Supreme Court's Carpenter decision and decided it applies to cell site location info, even when that information was obtained by law enforcement years before the Supreme Court came to this conclusion. (via Courthouse News)

The location records obtained from AT&T without a warrant destroyed the accused murderer's alibi. From the decision [PDF]:

Christopher James Holder, Appellant, was charged with capital murder. During the course of the investigation, police accessed 23 days of his CSLI to corroborate his alibi that he was out of town when the victim was killed. But Appellant lied. The records showed that he was near the victim’s house at the time of the murder.

Holder filed motions to suppress the CSLI, arguing the records were obtained without reaching the required "specific and articulable" suspicion standard set by the Stored Communications Act. He also argued it violated the Texas Constitution's version of the Fourth Amendment, which reads:

The people shall be secure in their persons, houses, papers and possessions, from all unreasonable seizures or searches, and no warrant to search any place, or to seize any person or thing, shall issue without describing them as near as may be, nor without probable cause, supported by oath or affirmation.

Here's where the investigator went wrong. There's a defining line between "reasonable suspicion" and "probable cause." The officer who approached AT&T apparently felt the terms were interchangeable and he could use whichever of those to obtain CSLI records.

The morning of November 12, police obtained a court order directing AT&T Wireless (AT&T) to disclose call log and CSLI records showing the location of Appellant’s cell phone between October 20 and November 12, but an AT&T representative declined to produce them because, according to them, the court order had to be based on probable cause. After changing the phrase “reasonable suspicion” to “probable cause,” the petitioning officer took the new order to a judge, who signed it. According to the officer, “[i]t was simpler for [him] to just change the wording[,] have it re-signed[,] and bother the judge one more time . . . .”

The footnote attached to this paragraph notes the State admitted during oral arguments the request did not have "sufficient facts to establish probable cause." Cutting corners isn't acceptable when rights are on the line, no matter how heinous the crime.

The court says suppression is not the appropriate remedy for "non-Constitutional" violations of the Stored Communications Act. But it is likely the appropriate remedy when the Texas Constitution and the Supreme Court's Carpenter decision are taken into consideration. The court undoes its own precedent to align the Texas Constitution with the US Constitution.

The question we must answer now is whether the Supreme Court’s analysis in Carpenter is persuasive, or whether we should take the position that Texas citizens have less privacy rights under the Texas Constitution than the United States Constitution based on a Supreme Court doctrine that even it has declined to apply to CSLI. We think that it makes more sense to adopt the Supreme Court’s reasoning in Carpenter and to no longer apply the third-party doctrine to CSLI records under Article I, Section 9.

Just because this court hasn't examined a case directly on point with the Carpenter decision doesn't mean Texans should have fewer rights just because they live in Texas.

The Supreme Court exhaustively analyzed the privacy issues implicated by CSLI, which we did not do in our original Hankston opinion, and we share the Court’s grave concerns about the Government’s ability to use a continuous, surreptitious, precise, and permeating form of surveillance to continually track its citizens’ every move retrospectively for up to five years. The same privacy concerns are implicated regardless of whether CSLI is accessed under the Fourth Amendment or Article I, Section 9. Further, we have reviewed the constitutional debates in Texas, which we did not previously do, and they show no intention on the part of our framers for Texas citizens to have less protection from unreasonable searches and seizure under the Texas Constitution than the United States Constitution.

Under the Texas Constitution, the search was unreasonable.

Generally, an Article I, Section 9 search is unreasonable absent probable cause, exigent circumstances, or some other recognized law-enforcement need. Here, because the State was acting in its traditional crime-fighting role, and it did not allege exigent circumstances or some other recognized law-enforcement need, the search had to be supported by probable cause to be reasonable. However, the State concedes that the petition does not support a probable cause finding. We agree.

This doesn't automatically lead to suppression of the CSLI records. But it does overturn two previous decisions by the lower courts. It heads back to the county's court of appeals for the judge to decide whether the illegally-obtained records gave the prosecution an unearned edge. Whatever the court decides, the rule is in place: the third-party doctrine does not apply to historical CSLI. Get a warrant.

Filed Under: 4th amendment, carpenter, cell site location info, christopher holder, csli, texas
Companies: at&t

Kentucky Appeals Court Says Cops Need Warrants To Obtain Real-Time Cell Site Location Info

from the another-post-Carpenter-trimming-of-the-Third-Party-Doctrine dept

The Supreme Court's Carpenter decision added Fourth Amendment protections to historical cell site location information (CSLI). The Court recognized people had a privacy interest in their location info, even if it was collected and stored by third parties. This narrow finding -- that historical cell site info is covered by the Fourth Amendment -- has created ripples that are rocking the Third Party Doctrine boat, resulting in the Carpenter decision being applied to other records historically believed to be outside the Constitution's protections.

Kentucky's Court of Appeals has extended protections to real-time cell site location info -- something the country's top court expressly refused to do. (via FourthAmendment.com)

During an investigation of an armed robbery, police officers contacted the suspect's cell phone carrier and had an employee "ping" the phone to discover its location. The officers remained in contact with the carrier for the next hour-and-a-half, pinging the phone until they located the phone and the suspect. Officers intercepted the suspect upon his return to the town where the robbery took place. No warrant was sought.

Citing the Supreme Court's Carpenter decision (and a recent Massachusetts state court ruling), the court [PDF] agrees with the defendant: it's makes little sense to say tracking someone's past movements with historical CSLI is somehow be more worthy of Constitutional protection than actively tracking them using real-time CSLI.

We agree that the acquisition of real-time CSLI implicates significant, legitimate privacy concerns. As the Supreme Judicial Court of Massachusetts recently observed, when the police are able to ping a cell phone in order to discover its location, they also acquire the ability to identify the real-time location of its owner, which is “a degree of intrusion that a reasonable person would not anticipate[.]” Commonwealth v. Almonor, 120 N.E.3d 1183, 1195 (Mass. 2019) (quoting State v. Earls, 70 A.3d 630, 642 (N.J. 2013)). This distinguishes the situation from one in which the police track an individual in the public thoroughfare or seek access to records held by a third party. “Although our society may have reasonably come to expect that the voluntary use of cell phones -- such as when making a phone call -- discloses cell phones’ location information to service providers, and that records of such calls may be maintained, our society would certainly not expect that the police could, or would, transform a cell phone into a real-time tracking device without judicial oversight.”

Tracking people using CSLI does more than reveal their movements in public spaces -- places they could theoretically be observed by anyone, including law enforcement. It also tracks their movements in private spaces, since their phones go wherever they go. This puts it in Fourth Amendment territory.

Thus, because pinging a cell phone enables the police almost instantaneously to track individuals far beyond the public thoroughfare into areas where they would have a reasonable, legitimate expectation of privacy, we conclude that a warrant is required to acquire real-time CSLI.

The government argued that the good faith exception should apply. The real-time pings were performed two years before the Supreme Court delivered its Carpenter ruling. Beyond that, the officers said the state courts had delivered no rulings on point that would have put cops on notice they needed warrants to obtain real-time CSLI.

Wrong, says the court. The standard that needs to be applied to gray areas where privacy rights might be implicated isn't the lack of a "no" from the courts. It's the absence of a "yes."

Unfortunately for our purposes, the Hedgepath Court did not rule on the matter because it was able to resolve the case on other grounds, but its commentary makes it clear that at the time Reed’s cell phone was pinged, there was no clearly established, binding precedent in Kentucky regarding real-time CSLI upon which the police could rely. In the absence of such precedent, the decision to proceed without a warrant and without a showing of exigent circumstances or other exception does not support a finding of good faith.

Very few courts are willing to draw the line here. Usually, good faith is granted if no case on point has directly established cops cannot do certain things. But officers should be held to a higher standard: one that demands they have clearly established legal standards before they act, not simply assume the lack of legal blessing (from the legislature or courts) will make their questionable actions acceptable.

Filed Under: 4th amendment, cell site location info, csli, kentucky, location info, warrants

CBP, ICE Hoovering Up Cell Location Data From Third Party Vendors To Track Down Immigrants

from the 'legal-gray-areas'-is-where-we-do-our-best-work dept

Supreme Court precedent says the government needs a warrant if it wants to get cell-site location info. This ruling altered the contours of the Third Party Doctrine, making it clear not every third-party record exists outside the Fourth Amendment's protections.

But that only applies to location info gathered from cell service providers utilizing the data they collect from cell tower connections. When the government wants to track the movement of individuals, it can do it, but it needs a warrant. When it just wants a bunch of location data on everyone in an area, somehow the warrant requirement disappears.

That's what CBP and ICE are doing. According to a report by the Wall Street Journal [paywall], the agencies are buying location info in bulk from third-party vendors. No warrant required.

The Trump administration has been using commercial data that tracks millions of smartphone users' locations to help enforce its policies on immigration and deportation, according to a report Friday from the Wall Street Journal.

The database, owned by a company called Venntel Inc., collects information from run-of-the-mill games, weather and shopping smartphone apps where users have agreed to share their location, according to the report.

This isn't cell-site location info, technically. But a lot of this location data wouldn't exist without cell towers. The CBP believes this is all very legal, as it does not target any one person and, in a rather stupid assertion, claims the data is "pseudonymized." This means the location data isn't linked to identifying info about the cell phone's owner. But that word means even less than the usual "anonymized." The application of analytic tools can strip this anonymization away, even without additional data pulled from other sources.

If the data were truly anonymized, it would be worthless: just a bunch of data points unrelated to anything. But it obviously isn't anonymized -- or at least isn't that way for long after the agencies obtain it -- or the government wouldn't be saying things like this:

Sources told the Journal that Immigrations and Customs Enforcement (ICE) and Customs and Border Protection (CBP), two divisions under the Department of Homeland Security (DHS), have used the location data to help them identify and locate those who may have entered the country unlawfully, whom they later arrested.

Both agencies have been using this data since 2017, according to contract info obtained by the Wall Street Journal. For now, it's still legal to obtain this data from third parties without a warrant. It's unlikely this data will see a successful challenge any time soon, not if it's coming from third parties that have been given explicit permission to collect location data.

But that doesn't mean current protections for cell-site location info won't eventually expand to cover third parties like Venntel. Voluntarily sharing location info with a company isn't the same thing as voluntarily sharing data with the government, no matter how much the government argues there's no expectation of privacy in records freely given to third parties. Many people feel more comfortable sharing data with companies, since the end result tends to be things like targeted ads, rather than targeted investigations.

Oddly, CBP claims the data is not "ingested in bulk," which seems to run counter to how this data is purchased. If it's truly anonymized, the CBP has no choice but to obtain it in bulk and work from there to determine who it's targeting for removal. Perhaps the CBP's definition of "bulk" is different than the common definition of "bulk." Maybe the agency believes that throwing up a couple of geofences prevents this from being a "bulk" collection. If so, the government is wrong. Anything that provides massive amounts of data from multiple sources is a, by definition, a "bulk collection."

This is working for the government right now. But sooner or later, this haystack-building method will likely find itself on the wrong side of the Constitution, especially when courts are informed of just how meaningless the word "anonymized" is in the context of bulk location data.

Filed Under: 3rd party doctrine, cbp, cell site location info, commercial purchases, csli, dhs, ice, location tracking, privacy, warrants

Florida Appeals Court Says Govt's Lack Of Good Faith Can't Save A 2012 Warrantless Stingray Deployment

from the lying-about-your-tools:-that's-going-to-cost-you dept

A good ruling [PDF] has been issued by a Florida Appeals Court -- one that not only affirms its earlier warrant requirement for Stingray use, but also reminds law enforcement that the good faith exception isn't as expansive as they think it is. (via FourthAmendment.com)

In 2018, the same court said the use of cell site simulators required warrants. Unlike collecting cell site location info from third parties (which was fine until the Supreme Court's Carpenter decision), Stingray devices turn the government into the second party, coercing location info from phone users by forcing them to connect to law enforcement's fake cell towers.

That decision doesn't bring precedential force to this case, which deals with events that happened six years before the state appeals court's 2018 ruling.

In 2012, the State charged the defendant with first-degree murder after his mother was found dead in their shared apartment. Detectives tracked the defendant using cell-site location information and a cell-site simulator. The defendant was found sitting in the victim’s parked car along with several pieces of evidence. The defendant moved to suppress the evidence, arguing it was obtained in violation of his Fourth Amendment rights. The trial court granted the motion to suppress, and the State appeals. We affirm the suppression order.

Six years later, a whole lot of evidence in a murder trial is going to be eliminated. The government's attempt to have the good faith exception applied dead ends here as well. The state argued detectives deployed the Stingray device without a warrant in good faith, since there was no binding precedent forbidding them from doing so. But the court points out it isn't willing to grant "good faith" to officers doing stuff just because no one has told them they can't yet.

The officers might have operated in good faith if their warrant request wasn't crafted in bad faith. The court notes precedent at that time (prior to the Supreme Court's Carpenter decision) allowed law enforcement to obtain cell site location info without a warrant.

Here, the State lacks the benefit of longstanding precedent authorizing the warrantless use of CSLI. However, Tracey I and the statutes authorizing law enforcements to access CSLI with a court order, taken together, provided sufficient precedent on which the detectives reasonably relied.

But investigators didn't actually obtain CSLI from a third party. They deployed a cell site simulator instead.

The cell-site simulator is another matter. Neither the application nor the court order mentioned a cell-site simulator.

The state might be technically correct, but technically correct isn't good enough in Florida.

In 2012, no binding case law addressed whether police must obtain a warrant to use a cell-site simulator. The good faith exception applies when binding precedent affirmatively authorizes a particular police practice.

Authorization is the key. And this court is one of the few that has applied the good faith standard this way. The government should not be able to operate freely in legal vacuums. That's what many choose to do, and far too many courts have decided good faith applies until something is expressly forbidden by a precedential decision. Not here.

The Fourth Amendment violation here is precisely the kind of violation the exclusionary rule seeks to deter. The CSLI data led detectives to a broad search area where the defendant was located. Unable to find the defendant’s exact location, the detectives went outside the scope of the court order and used a cell-site simulator to locate him.

This should be the standard for the good faith exception.

The government cannot rely on the absence of binding decisional law in this area to conduct a warrantless search.

The government should act cautiously in the absence of binding precedent. Instead, it exploits every gray area not sufficiently explored by courts. This is not how public servants should act when faced with a lack of specific guidance. Making up the rules as you go along is not "good faith." Neither is hiding the use of a cell site simulator behind a court order for cell site location info. The more the government acts this way, the less it can be trusted. Moving it back in line with the principles it's supposed to be upholding will take more decisions like this -- ones that call out bad faith for what it is, rather than pretend every under-explored area of the Fourth Amendment is covered by the good faith exception.

Filed Under: 4th amendment, cell site location info, csli, florida, stingray, surveillance, warrant

Supreme Court's Warrant Requirement For Cell Site Location Info Apparently Killed Another Domestic Surveillance Program

from the i,-for-one,-welcome-a-Supreme-Court-killing-spree dept

Oh, guess what? The NSA has ended another third party data collection -- one it hopefully ended right after the Supreme Court's Carpenter decision was released. Spencer Ackerman fills in the details at the Daily Beast.

U.S. intelligence agencies have stopped collecting cell-phone location data without a warrant on people inside the United States, the office of the director of national intelligence has affirmed.

Sounds good. Sounds like the NSA probably doesn't have a legal way to continue this warrantless collection now that the Supreme Court has ruled historical cell site location info is covered by the Fourth Amendment. It's been nearly 18 months since this decision was released. The letter sent to Ron Wyden by the ODNI indicates the Intelligence Community abandoned its harvesting of CSLI shortly after that ruling.

But, as Ron Wyden points out, the ODNI isn't willing to state publicly that the Supreme Court's decision was a contributing factor to its mothballing of the CSLI collection.

“The Intelligence Community has now publicly revealed that, since the Supreme Court decision more than a year ago, it hasn’t used Section 215 of the PATRIOT Act to track Americans,” Wyden said in a statement provided to The Daily Beast. “At the same time, the government is hedging its bets by not formally acknowledging that the Supreme Court case applies to intelligence surveillance…"

This is another of the NSA's Section 215 collections. The most famous collection under Section 215 was the one exposed by the first Snowden leak: phone call metadata. This collection was retooled by the USA Freedom Act, which forced the IC to approach telcos with targeted orders supported by reasonable suspicion. The NSA was apparently so used to just collecting it all, it couldn't manage to find a way to obtain this data without violating the law. It was abandoned and the NSA recommended to have it shut down forever. The FBI doesn't like that idea, though, and wants Congress to give the phone metadata collection -- along with everything else harvested under Section 215 -- a permanent reauthorization.

At least that's not going to happen. It looks like the phone metadata collection will now become the only thing that's truly forever: dead.

A forthcoming bill from the House judiciary and intelligence committees will reauthorize three other surveillance measures set to expire, but will not permit the Call Detail Records program to survive. With expiration set for Dec. 15, whatever the Senate does the Call Detail Records program, barring some eleventh-hour legislative chicanery, looks like the rarest of birds: a post-9/11 surveillance activity on course for extinction.

You can draw a straight line from the Snowden leaks to the death of this collection. The Patriot Act gave the NSA a handy way to spy on Americans. 14 years later, the USA Freedom Act scaled back that power, altering the program enough that the NSA couldn't seem to find a way to collect these records without violating the law. Five years after this minor surveillance reform effort, the program will be put out of its misery.

But the NSA has plenty of other collection authorities that will remain unchanged and mostly unexamined. Even this Section 215 collection -- which seemingly violates Supreme Court precedent -- hasn't received much public discussion. It seems clear warrantless collection of cell site location info is now illegal, but until more details head Wyden's way, we probably should assume the Office of Legal Counsel is trying to assemble a rationale that allows the Intelligence Community to route around the Carpenter roadblock.

But, if nothing else, the phone metadata collection is dead. Forever. And that's worth celebrating.

Filed Under: 4th amendment, cell site location info, csli, location info, nsa, odni, ron wyden, surveillance, warrants

Magistrate Judge Rejects Govt's Attempt To Use A Stored Records Law To Seek Future Cell Site Location Info

from the thanks-for-the-warrant-but-you're-still-doing-it-wrong dept

Someone's keeping the government in line in Idaho. Federal judge Ronald E. Bush isn't just skimming warrant applications and signing them. He's actually reading them and applying the law. This probably isn't endearing him to federal agents.

In May of this year, he told the government that forcing a suspect to unlock a phone using swipe pattern was unconstitutional. He told the government the same thing a couple of months later when it was attempting to get a court order compelling fingerprint production. One of these was rolled back by the district court, but it appears warrant applications in Ronald Bush's court are receiving more scrutiny than they are elsewhere.

Judge Bush's latest pushback deals with cell site location info. This information, collected by cell service providers, used to be acquired without a warrant. Up until the Supreme Court's 2018 decision, CSLI was considered a third party record that could be obtained with only a subpoena. Historical location data now needs warrants, hence these warrant applications -- one of which Judge Bush has rejected [PDf}.

Bush says the Stored Communications Act (SCA) warrant is fine as long as the government sticks to, you know, stored communications. But the government wants to do more under this same authority. Since the government doesn't appear to know exactly where its suspect is located, it wants to use the SCA to track the location of the suspect's phone as location records are generated.

The second application, however, seeks not historical location information or other historical subscriber data, but rather seeks thirty days of prospective “location information” regarding the target telephone. In other words, the Government seeks a warrant under the Stored Communications Act to permit the Government to gather future information, which the application defines to include “all available E-911 Phase II data, GPS data, latitude-longitude data, and other precise location information, as well as data about which ‘cell towers’ (i.e., antenna towers covering specific geographic areas) and ‘sectors’ (i.e., faces of the towers) received a radio signal from the cellular telephone.” Such location information is sometimes referred to as “real-time cell-site location information” or “real-time CSLI.”

As the judge points out, the SCA does not cover records that haven't been created yet, much less "stored."

The Court will deny the second application because the SCA does not authorize issuance of a warrant to allow the Government to collect prospective location information.

There is an option the government can use to collect real time CSLI. Under Rule 41, the government can obtain this data, deploying the warrant to collect the info as it comes in. But the government doesn't want to use its Rule 41 powers because they're a bit more limited in scenarios like these. SCA warrants can compel production from anywhere. Rule 41 allows tracking of an individual's movements via a device (or a third party) but the "device" must be installed in the district. Since the government doesn't actually know where the targeted phone is located, it cannot meet the venue requirements needed to secure judicial permission.

The government's argument is basically, "If you don't let us do this the wrong way, there's a possibility we won't be able to do it at all."

The Government notes that “if the Court declines to issue the warrant, the Government will have to rely on other less-direct and potentially less-effective methods to find” the subject.

The court agrees this might be more difficult for the government.

The Court will accept the Government’s representation that the task of locating the suspect may be more cumbersome if the prospective location information warrant is not granted.

But it isn't the court's job to make the government's work easier.

[T]he relative expediency or arguable cumbersomeness of the method of obtaining the location information sought by the Government is not a basis to rule that the SCA allows for something which its language otherwise does not permit.

The government will have to cut investigative corners somewhere else. Judge Bush's court isn't going to help out by participating in the government's self-induced SCA delusion. Stored records aren't records that don't exist presently and still have a chance of never existing, no matter how much the government believes they are.

Filed Under: 4th amendment, 5th amendment, cell site location info, csli, location info, ronald bush, sca, stored communications act, warrants

Denmark Releases 32 Prisoners Convicted Because Of Flawed Mobile Phone Tracking Data

from the but-how-many-more-to-come? dept

A few weeks ago, Techdirt wrote about Denmark reviewing 10,000 court verdicts because of errors in mobile phone tracking data that was offered as evidence in those cases. At that time, it wasn't clear how many of the group were affected by the unreliable data. However, the Guardian reports that 32 people have already been freed. Given the large number of cases involved, it seems unlikely that many have been reviewed in such a short space of time. If that's the case, it is possible that quite a few more verdicts will be overturned, and more people released. Companies providing mobile phone services in Denmark are naturally keen to distance themselves from this mess. Jakob Willer, speaking on behalf of the country's telecoms industry association, said it was not their job to provide evidence:

"We should remember: data is created to help deliver telecom services, not to control citizens or for surveillance," Willer said. He conceded it could be valuable to police, but insisted its primary purpose was to facilitate communication between users.

That's an important point. If the authorities wish to use this kind of data they need to take into account that it was never designed to track people, and therefore has limitations as evidence. Fortunately, Denmark's embarrassing discovery that an unknown number of over 10,000 verdicts may be based on unreliable evidence has been something of a wake-up call for the country's lawyers. Karoline Normann, the head of the Danish law society's criminal law committee, told Agence-France Presse:

"This situation has changed our mindset about cellphone data. We are probably going to question it as we normally question a witness or other types of evidence, where we consider circumstances like who produced the evidence, and why and how."

It's troubling that it didn't occur to the legal profession to do that before. Just because information comes from high-tech sources doesn't mean it is infallible or that it can't be challenged.

Follow me @glynmoody on Twitter, Diaspora, or Mastodon.

Filed Under: csli, denmark, evidence, location info, location tracking, privacy

Massachusetts' Top Court Says Warrants Are Needed For Real-Time Cell Site Location Info

from the this-means-you,-Stingrays dept

Five years ago, the Massachusetts Supreme Judicial Court got out ahead of the tech curve by declaring that state law enforcement would need warrants to seek historical cell site location info. This predated the US Supreme Court's Carpenter decision by four years. The state court's prescient decision was compelled by the state's Constitution, which provides greater protections than the United States' Constitution.

But no matter which Constitution was used, the court found that the Third Party Doctrine shouldn't cover CSLI because, while everyone uses cellphones to communicate with each other, not a single cellphone user carries one around just to create tracking data for the government.

A recent decision by the same court expands protections for cellphone users -- going further than Carpenter's protection of historical cell site location info. As the ACLU's Kade Crockford points out, real-time acquisition of location info now comes with a warrant requirement. This covers more than service provider-assisted "pings." It also covers one of law enforcement's favorite toys.

Crucially, the ruling takes a different approach from the Supreme Court’s Carpenter decision in one key respect: Instead of confining its mandate to the narrow circumstances of the case before the Court, the ruling extends the warrant protection to other types of real-time cellphone tracking, including where the government uses its own technology rather than requesting the assistance of cellphone companies. In a huge victory for Massachusetts residents, the ruling explicitly specifies that it additionally applies to law enforcement’s use of so-called “stingrays,” also known as cell-site simulators, or devices that police can use to directly track cellphones—enabling police to cut out the cellphone company from the equation entirely.

As the court points out in its decision [PDF], manipulating a person's phone to reveal its location has nothing to do with third-party records or phone users' implied relinquishment of this tracking data. The only party involved is the government. The service provider may be involved, but the phone's owner certainly isn't.

The intrusive nature of police action that causes an individual's cell phone to transmit its real-time location raises distinct privacy concerns. When the police ping a cell phone, as they did in this case, they compel it to emit a signal, and create a transmission identifying its real-time location information. [...] This action and transmission is initiated and effectively controlled by the police, and is done without any express or implied authorization or other involvement by the individual cell phone user. See id. (noting that cell phone ping is "undetectable to the [cell phone] user"). Without police direction, such data would also not otherwise be collected and retained by the service provider.

This active inducement of a signal, solely for the purpose of locating a phone, is something invasive enough it requires a warrant. Since that's all Stingrays do -- induce all phones in the area to cough up identification/location info -- there's no way Stingrays aren't covered by this ruling. The court is clear law enforcement means and methods that subvert societal expectations are unreasonable. Hence the need for warrants.

We confidently conclude that such police action implicates reasonable expectations of privacy. Indeed, society reasonably expects that the police will not be able to secretly manipulate our personal cell phones for any purpose, let alone for the purpose of transmitting our personal location data.

The footnote attached to this paragraph specifically references Stingray devices. And it makes it clear this ruling covers whatever new tech/method law enforcement uses to obtain real-time location info, preemptively instituting a warrant requirement for future tech developments.

We recognize that the government's ability to compel a cell phone to reveal its location is not limited to the pinging that occurred in this case. For instance, law enforcement in other jurisdictions have used "cell site simulators" to track down persons of interest by "trick[ing] all nearby phones" into revealing their location information (quotations omitted). State v. Andrews, 227 Md. App. 350, 379 (2016). Nor do we doubt that as technology continues to advance, the government will develop new ways to compel an individual's cell phone to reveal its location. The privacy concerns raised by pinging a cell phone apply equally to any circumstance where the cell phone's location information is generated as a direct result of the government's manipulation of an individual's cell phone.

It's a solid ruling. And it shows some states are going to set the pace in tech/privacy cases simply because their state Constitutions provide residents with more protections than are found at the federal level. If we can't get a unified stance from the top court in the land, maybe we can piece it together state-by-state.

Filed Under: 4th amendment, cell site location info, csli, massachusetts, privacy, warrants

Reverse Warrant For Cell Site Location Info Results In Wrong Man Being Jailed

from the first-but-certainly-not-the-last dept

Reverse warrants are the new regular warrants. Ever since law enforcement discovered most Americans carry tracking devices with them 24/7, they've been approaching cellphone providers with warrants targeting geographic areas rather than people.

When a crime has been committed but cops don't have any suspects, they ask Google and others to canvass the area for them. Officers hand providers a geofence and ask for everyone who wandered into the selected area during a certain timeframe. Once cops have everyone, they start looking for someone.

It seems weird but it's really not all that different than sending officers out to areas around crime scenes to ask anyone if they've seen anything. The difference here is cops are getting info about people's movements in an area when they're not suspected of any criminal activity. In addition, the areas covered by warrants often include high-traffic areas like businesses and multi-family housing, increasing the chance cops are going to zero in on the wrong suspect simply because someone lives or works near a crime scene.

That's exactly what happened in Phoenix, Arizona. Detectives investigating a shooting handed a reverse warrant to Google. This data was used to arrest the wrong person, as Jennifer Valentino-DeVries reports for the New York Times.

The police told the suspect, Jorge Molina, they had data tracking his phone to the site where a man was shot nine months earlier. They had made the discovery after obtaining a search warrant that required Google to provide information on all devices it recorded near the killing, potentially capturing the whereabouts of anyone in the area.

[...]

But after he spent nearly a week in jail, the case against Mr. Molina fell apart as investigators learned new information and released him. Last month, the police arrested another man: his mother’s ex-boyfriend, who had sometimes used Mr. Molina’s car.

Police like the new tool, but acknowledge it has its limits. First, there's a lot of junk data to sort through, and not all investigators have the training necessary to make sense of these quasi-tower dumps. But that hasn't stopped them from using this option with increasing frequency. Google -- which holds up to ten years of location data in a massive database referred to by employees as the "Sensorvault" -- is now receiving up to 180 requests a week for mass location data.

Prosecutors seem cautious about the tool as well, which is a good sign. But considering what happened to Jorge Molina, this statement seems a bit too optimistic.

“It doesn’t pop out the answer like a ticker tape, saying this guy’s guilty,” said Gary Ernsdorff, a senior prosecutor in Washington State who has worked on several cases involving these warrants. Potential suspects must still be fully investigated, he added. “We’re not going to charge anybody just because Google said they were there.”

Well, maybe Ernsdorff won't. But it appears others will. The more law enforcement shoots first and asks questions later, the more often it's going to end up putting the wrong person behind bars. Like any other bulk collection, the potential to reach the wrong conclusion while sorting through haystacks is omnipresent. If Google's responding to tens of thousands of requests a year for bulk location data, Jorge Molina's story isn't going to remain an outlier for long. Certainly the tool has proven useful in other cases, but the sheer number of requests suggests law enforcement isn't using this tool cautiously. That's bad news for everyone carrying a cellphone.

Filed Under: cell site location info, csli, false arrests, jorge molina, phoenix, reverse warrant
Companies: google