Judge Actually Recognizes The 4th Amendment: Says Police Can't Get Location Info From Telcos To Arrest You

from the they-have-other-ways... dept

With all the reports of law enforcement collecting tons of location info from telcos without a warrant, as well as a bunch of court rulings that seem to chip away at what's left of the 4th Amendment, it's somewhat surprising to see a magistrate judge say that police cannot use a warrant to find out your location from a mobile operator, for the purpose of arresting you. From Orin Kerr's summary of the ruling:
Here’s the basic reasoning of the opinion. First Judge Gauvey creates what a appears to be a new distinction in Fourth Amendment law: a distinction between (a) Fourth Amendment rights in location at a given time, and (b) Fourth Amendment rights in movement over time. According to Judge Gauvey, individuals have a reasonable expectation of privacy in both. There is a reasonable expectation of privacy as to a person’s location if a person cannot be visually observed in that same way. And there is a reasonable expectation of privacy in movements, which Judge Gauvey seems to be taking from the DC Circuit’s Maynard/Jones “mosaic theory” case (which the Supreme Court recently agreed to hear). Judge Gauvey then reasons that if everyone has this Fourth Amendment right, people who have warrants out for their arrest have this right to privacy, too. For that reason, the information held by the phone company as to the location of the phone user is protected by the Fourth Amendment.

Judge Gauvey then considers whether the Fourth Amendment allows a warrant to be issued based on probable cause that the information will help execute an arrest warrant. She concludes the answer is no: A Fourth Amendment warrant requires probable cause that evidence or contraband is located in the place to be searched or that a person who committed a crime is in the place to be searched. Mere probable cause to believe that location information would help the police execute a warrant is not enough under the Fourth Amendment.
Kerr suggests that the case law actually disagrees with the judge in this case, and even the judge appears to admit that she thinks the Supreme Court might disagree, but she said without specific guidance from the Supreme Court, she believes her ruling is correct.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
    identicon
    Anonymous Coward, Aug 10th, 2011 @ 3:11pm

    This is whats wrong with Amerika

    Really, Americans are giving away their rights left, right and center in the name of security. Why shouldn't the police be allowed to use real time telco info to locate someone. If they have an arrest warrant, there is a pretty good chance that person did something they shouldn't have, and you should all be happy they are picked up in a timely manor.

    Lets look at this scenario, some piece of #@$% child molester grabs a kid, the cops identify him, but cant trace his location via cell phone, cause that would be an invasion of his privacy...
    Give your head shake...

     

    reply to this | link to this | view in thread ]

  2.  
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    bigpallooka (profile), Aug 10th, 2011 @ 3:30pm

    Re: This is whats wrong with Amerika

    I'm no legal expert and I'm not American but I think you misinterpreted the article. It seems fairly clear to me that the magistrate was talking specifically about location for the purpose of issuing a warrant (which could be for the most trivial of matters) whilst your talking about location of someone in the act of committing a crime. I think THAT is what's wrong with 'Amerika' (and Australia where I come from). Everyone is so absorbed in their hate and blame games that they disregard facts or interpret everything on an emotional level instead of a logical one. Reminds me entirely too much of my ex. I do however, see your point regarding the need for any legal system not to hinder police work when it is about catching actual criminals.

     

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  3.  
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    Makoto (profile), Aug 10th, 2011 @ 3:31pm

    Re: This is whats wrong with Amerika

    The whole issue with this, as I see it:

    I don't think we have a problem with lawbreakers and criminals being arrested.

    There is a problem, however, with the stripping of rights done to get to that point.

     

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  4.  
    icon
    bigpallooka (profile), Aug 10th, 2011 @ 3:31pm

    Re: Re: This is whats wrong with Amerika

    your = you're

     

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  5.  
    identicon
    Anonymous Coward, Aug 10th, 2011 @ 3:31pm

    "Lets look at this scenario, some piece of #@$% child molester grabs a kid, the cops identify him, but cant trace his location via cell phone, cause that would be an invasion of his privacy...
    Give your head shake..."

    Did you even RTFA? The judge ruled that the fourth amendment applies UNLESS there is reasonable suspicion that the person is committing a crime. In case you missed it - here ya go:

    "She concludes the answer is no: A Fourth Amendment warrant requires probable cause that evidence or contraband is located in the place to be searched or that a person who committed a crime is in the place to be searched"

    So your 'child molester theory' is null and void. HAND!

     

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  6.  
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    The Infamous Joe (profile), Aug 10th, 2011 @ 3:32pm

    Re: This is whats wrong with Amerika

    I like to pretend that people are innocent until they're proven guilty.

    I know, crazy.

     

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  7.  
    identicon
    Nicedoggy, Aug 10th, 2011 @ 3:36pm

    https://telex.cc/paper.html

    Time to use Telex again LoL

    Seriously, that paper has one good idea and that is cryptographic steganography using HTPPS which makes data invisible to others.

     

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  8.  
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    Jay (profile), Aug 10th, 2011 @ 3:44pm

    Re: This is whats wrong with Amerika

    "Americans are giving away their rights left, right and center in the name of security"

    Just because a judge is signing them away, does NOT mean I'm giving them away.

    " Why shouldn't the police be allowed to use real time telco info to locate someone."

    Because the impetus is on them to prove that someone is guilty of crimes committed and if they're going to make an arrest, it's going to be based on evidence. Evidence of residency, evidence of a weapon used, hell, even evidence of description. But evidence based on what a cell phone wire says about a person's location? You know what would happen after I discover my phone has the capability to give law enforcement my exact location?

    First thing tomorrow, I'm hacking my phone, deactivating that software, and using my phone to make calls to my family and friends. Government, even law enforcement, does not need to know all of my private details.

    " If they have an arrest warrant, there is a pretty good chance that person did something they shouldn't have, and you should all be happy they are picked up in a timely manor."

    And by all means, law enforcement already has that information. Cell phone tracking is not required. Once again, so you understand this. YOU DO NOT NEED TO TRACK A CELL PHONE TO SERVE A WARRANT!

    "Lets look at this scenario, some piece of #@$% child molester grabs a kid, the cops identify him, but cant trace his location via cell phone, cause that would be an invasion of his privacy..."

    Ok, let's take that scenario and ask one simple question.

    What if police get the data wrong, pick up the wrong person, make a public statement about it, and ruin one person's life and reputation based on cell phone data? Why didn't they pick up the slack, track the location of the person to a home and pick up that piece of #@$% child molester to a house, watch it, and make sure it's the right person?

    This is the same as the IP location for copyright law. It's not tied to a person and is prone to error. Why do you want so much to give law enforcement so many powers when they just need to put up some more elbow grease?

     

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  9.  
    identicon
    Anonymous Coward, Aug 10th, 2011 @ 3:46pm

    Question on NSLs

    If the Telcos have been issued National Security Letters (NSL) then is this a moot point? It is my understanding that a NSL would require the Telcos to hand over your information to the authorities without notifying you or ever speaking about it in the name of National Secutity.

     

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  10.  
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    Gordon (profile), Aug 10th, 2011 @ 3:54pm

    Re: This is whats wrong with Amerika

    To all that have already replied to this, I'm sorry if I'm about to step on anyone's toes but I think you're missing what's really wrong with this statement.

    "Really, Americans are giving away their rights left, right and center in the name of security. Why shouldn't the police be allowed to use real time telco info to locate someone."

    How could you talk about Americans giving away their rights for the sake of security in one breath and then turn around in the next and say it's alright for police to get info in a backhanded way.

    I don't get your reasoning.

    Just asking.

     

    reply to this | link to this | view in thread ]

  11.  
    identicon
    Anonymous Howard, Cowering, Aug 10th, 2011 @ 4:07pm

    @ #1-Re: This is whats wrong with Amerika

    I may have missed the sarcasm and ESL tags, in which case I apologize.

    But if sarcasm wasn't intended, I'm flabbergasted:
    - "Americans are giving away their rights..." has exactly what to do with the article? It's about the actual enforcement of Constitutional rights FOR A CHANGE! Can you say (or even better, look up), "non-sequitur?"
    - Questions normally end with a question mark. "Why" is one of the usually interrogatory sentence starters.
    - To answer the incorrectly punctuated question, nobody said the police couldn't use that information. This case is about using that information to execute an arrest warrant, which was deemed insufficient reason to issue a warrant for the telco info.
    - "...pretty good chance..." is only that. In this country, the standard is innocent until proven guilty, despite recent evidence to the contrary. However, it is still the law of the land. (And this is what's RIGHT about America.)
    - I would be happy if accused perpetrators all frequented "...a timely manor." Since a manor is a building, the police can simply stake the place out and execute the arrest warrant when the suspect shows up.
    - Your "scenario" is entirely without merit. An abducted child would likely be considered to be in danger of imminent harm, which would override the perpetrator's reasonable expectation of privacy. A warrant would be issued on that ground, and the telco would happily comply.
    - I did shake my head in sorrow, but not for the reason you apparently wanted. Sorry.

     

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  12.  
    identicon
    Anonymous Coward, Aug 10th, 2011 @ 4:11pm

    Re: Re: This is whats wrong with Amerika

    The problem with 'hacking' your phone is that they get the information from cell tower connections and triangulaton. If you disable your phone from reaching cell towers, then you cannot make a call. It isn't always GPS applications.

    Better to take the battery out, when your not using it. Three benefits come from this.

    1. Improved battery life.

    2. No tracking ability.

    3. Relief from your electronic leash.

     

    reply to this | link to this | view in thread ]

  13.  
    identicon
    Anonymous Coward, Aug 10th, 2011 @ 4:17pm

    Does it really matter anymore. All you have to do now is hire a lawyer, call the press, and give a really good SOB Story. Win case, make Thousands on the book and movie rights and walk out the door a free and considerably richer person.......

     

    reply to this | link to this | view in thread ]

  14.  
    identicon
    DCX2, Aug 10th, 2011 @ 4:33pm

    Not sure I agree...

    If they actually got a warrant for the location info and a warrant for the guys arrest, then...what did the police do wrong?

     

    reply to this | link to this | view in thread ]

  15.  
    identicon
    Anonymous Coward, Aug 10th, 2011 @ 5:53pm

    Re: Not sure I agree...

    They have a warrant for the guy's arrest, they were trying to get a warrant for the location info and the judge denied that warrant on the grounds that their search of the Teleco's information would yield neither the suspect nor evidence or contraband. Given that there were no cause to believe either would be found in the execution of the search warrant the judge denied said warrant.

     

    reply to this | link to this | view in thread ]

  16.  
    identicon
    Anonymous UnBrainwashed, Aug 11th, 2011 @ 2:53am

    Re: This is whats wrong with Amerika

    Lets look at this scenario, some piece of #@$% child molester grabs a kid, the cops identify him, but cant trace his location via cell phone, cause that would be an invasion of his privacy...
    Give your head shake...


    Nice of you to trot out the child-molester boogeyman. Want to try for Muslim terrorist next? Go back to sleep.

     

    reply to this | link to this | view in thread ]

  17.  
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    Thomas (profile), Aug 11th, 2011 @ 5:37am

    While I believe..

    that the judge is correct, there's no chance the ruling will stand up to appeals courts or the SCOTUS. The government will invoke the "catching terrorists" card or perhaps the"finding child molesters" card and the higher courts will quickly strike the ruling down.

    The federal government's Gestapo will not allow such silly things as the constitution to stop them from arresting whoever they feel like, regardless of whether there is any probable cause or not.

    It's sad when you we are in a situation where the highest levels of the government feel that the Constitution are simply obstacles to get past.

     

    reply to this | link to this | view in thread ]

  18.  
    identicon
    Anonymous Coward, Aug 11th, 2011 @ 6:46am

    Re: While I believe..

    More importantly, there is little to suggest that we should have any more or additional rights after we choose to strap a radio transmitter to our body and carry it around all day.

    The airwaves used to make the transmissions are public property, and could be intercepted by anyone.

    If you want privacy, you should do the electronic version of closing the curtains, that is to say turn off your phone.

     

    reply to this | link to this | view in thread ]

  19.  
    identicon
    Anonymous Coward, Aug 11th, 2011 @ 7:08am

    I think this is actually a ruling that's very literal.
    Warrants are supposed to list the persons and places to be searched or arrested based on their being involved in the crime.

    Location data is less like a person to be arrested or location to be searched and more like a potential computerized witness or some sort of raw information.

    I can see it now: "Phone, where were you on the night of August 11th?"

    Though based on this reasoning, it may be reasonable to get a warrant to search phone company premises in order to obtain the data, rather than a warrant for 'location data.'

     

    reply to this | link to this | view in thread ]

  20.  
    identicon
    thrudd, Aug 11th, 2011 @ 12:58pm

    Re: Re: While I believe..

    While your point about free access to listen to the whole radio spectrum may be valid in a few countries like Canada. The exact opposite is true for countries like Russia or the States. It is 100 percent illegal to listen in on specific frequencies. If you don't believe me then check any scanner legally available in the States.
    Sad but true.

     

    reply to this | link to this | view in thread ]


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