Various US government agencies have spent a lot of time and energy hoping to ensnare as much cell phone data as possible without having to deal with the "barriers" erected by the Fourth Amendment. The feds, along with Los Angeles law enforcement agencies, have bypassed the protections of the Fourth Amendment by deploying roving cell phone trackers that mimic mobile phone towers. The FISA Amendments Act has been used as a "blank check" for wholesale spying on Americans and has been abused often enough that the Director of National Intelligence was forced to admit these Fourth Amendment violations publicly.

The good news is that a few of these overreaches are receiving judicial pushback. Orin Kerr at the Volokh Conspiracy has a very brief writeup of a recent shutdown of another cellphone-related fishing expedition led by an assistant US Attorney. An attempt was made to acquire records for ALL cell phones utilizing four different towers in the area of a specific crime at the time of the event. As Kerr notes, this ruling refers to the Fifth Circuit court decision that found cell phone data to be protected under the Fourth Amendment, thus requiring a warrant to access it.

Magistrate Judge Smith points out that part of the issue is that the principals involved (the assistant US Attorney and a special agent) seemed to lack essential knowledge of the underlying technology, and that this lack of knowledge prevented them from recognizing the overreach of their request:

Moreover, it is problematic that neither the assistant United States Attorney nor the special agent truly understood the technology involved in the requested applications. See In re the Application of the U.S. for an Order Authorizing the Installation and Use of a Pen Register and Trap and Trace Device, ––– F.Supp.2d ––––, 2012 WL 2120492, at *2 (S.D. Tex. June 2, 2012). Without such an understanding, they cannot appreciate the constitutional implications of their requests. They are essentially asking for a warrant in support of a very broad and invasive search affecting likely hundreds of individuals in violation of the Fourth Amendment.

There has been a lot of discussion here at Techdirt regarding the incredible lack of knowledge present in those seeking to regulate or exploit various technologies. Considering the amount of possible collateral damage and the heightened chance of rights violations, you'd think these entities would be exercising maximum caution before tampering with something they don't understand. Instead, the common approach is to use the ends (safety, crime prevention, etc.) to justify the missteps and rights-trampling of the means, leaving the judicial system and various trampled citizens to sort out the mess.

Judge Smith quotes the Fourth Amendment and points out that warrants must be issued and only "upon probable cause" before continuing to run down the list of wrongs in this request.

Finally, there is no discussion about what the Government intends to do with all of the data related to innocent people who are not the target of the criminal investigation. In one criminal investigation, the Government received the names, cell phone numbers, and subscriber information of 179 innocent individuals. See United States v. Soto, No. 3:09CR200 (D.Conn. May 18, 2010) (Memorandum in Support of Motion to Suppress). Although the use of a court-sanctioned cell tower dump invariably leads to such information being provided to the Government, in order to receive such data, the Government at a minimum should have a protocol to address how to handle this sensitive private information.

But, as Smith points out, the government doesn't have a protocol in place, even more than two years down the road.

Although this issue was raised at the hearing, the Government has not addressed it to date.

This is hardly new territory for government agencies. The TSA has had nearly 20 months to begin taking public comments on the use of various body imaging scanners, but despite two trips to the DC Circuit Court, it has yet to begin this process, something generally undertaken before implenting a new system. If it's something the government feels may be unpopular with the public, it tends to attempt to stall indefinitely, an (in)action that (again) places the burden back on the courts and the general public.

But, at least in this case, Judge Smith is using this lack of action against the government representatives.

This failure to address the privacy rights for the Fourth Amendment concerns of these innocent subscribers whose information will be compromised as a request of the cell tower dump is another factor warranting the denial of the application.

It's a good sign that stalling tactics may hurt more than help in the future. Many government and law enforcement agencies are still looking for any loophole in current laws in order to bypass the limitations placed on them by the Constitution. There's still a long way to go before there's anything resembling an equitable relationship between the general public and those in power, but we'll take everything we can get and (hopefully) receive more help pushing back against these intrusions.

Apparently there was some tension at the Mobile World Congress—the world's largest mobile phone trade show—as the growing battle over text messaging took center stage. As you may know, SMS text-messaging is a rip-off, and a huge cash-cow for the mobile telecoms, who charge premium rates for a service that has an effective cost of zero (SMS messages are encoded into regular signals that cell towers have to send anyway). But they are losing a growing chunk of that income to data-based messaging services like BBM, iMessage, WhatsApp, Facebook Messenger and more. Naturally, they aren't happy, and they try to frame it as an unfair disruption of their business model:

Needless to say, mobile companies are not happy at the flood of free messaging services piggybacking on their networks. Telecom Italia chief executive Franco Bernabe told MWC that free messaging services are undercutting the ability of phone companies to invest in their networks. Paid texting, or SMS, has been a cash cow for phone companies which uses minimal network capacity.

The new players "have based their innovation in the mobile domain, without a deep understanding of the complex technical environment of our industry. This is increasingly creating significant problems to the overall service offered to the end user and driving additional investments for mobile operators," Bernabe said.

None of that makes a lick of sense. Bernabe is basically saying that everyone else has a responsibility to not build data apps that compete with telecom services, but unfortunately for him that's not how free markets work. Rather than seeing the huge opportunity that is the growing demand for wireless data access, the telecoms have decided to focus on the one thing that has stopped SMS from being completely replaced already: the lack of a single standard alternative. GMSA, a mobile industry group, has built a new cross-platform messaging service that they hope to get pre-installed on all cellphones and have become the standard for all text, photo and video messaging—though they haven't announced how much they plan to charge for the service. They claim that nine out of ten major device makers have signed up, with all eyes falling on Apple as the probable holdout: Apple is on a crusade to kill SMS messaging, and they likely would have succeeded by now if they weren't committed to their own walled-garden approach that pushes everyone towards iOS.

Of course, the same conference was also attended by the companies that have the telecoms so frightened. Joe Stipher, co-founder of messaging service Pinger, had a wiser perspective on the direction things are headed:

"Text messaging is free, and calling is going to be free," said Stipher, wearing jeans that contrasted with the dark suits favoured by thousands of mobile phone company executives attending the four-day 2012 Mobile World Congress that ended Thursday. "Data is going to be like electricity or water, not totally free, but do you worry about giving someone a glass of water at your home or letting them plug in? No."

I actually think that could be slightly better worded: in the future, there will be no more distinctions like "text" and "voice". Everything is just data anyway. But Stipher is absolutely right that bandwidth is becoming a generic utility, and that's something the telecoms have to accept. For some reason, they are terrified of becoming "dumb pipes"—they want to be "smart pipes" that charge premiums for different "kinds" of data, even though that's basically an imaginary concept. It's an odd attitude, because being a dumb pipe for something that everybody wants is a pretty good position, and if you accept it then you stand to make more money by letting people build whatever they want on top of what you provide. Truly, this would be the smart thing for a pipe to do, and Stipher has some fun with this by co-opting the term for himself. The carriers play along, using their own definition, and what results is an amusing portrayal of the mental disconnect that exists:

[Stipher] explained that "The carriers should be smart, reliable pipes" providing internet data access like utilities give reliable water and electricity, he said. "They need to focus on being good network operators."

[Rene] Obermann [chief executive of Germany's Deutsche Telekom] said carriers are at a crucial point at which they must "develop our own, innovative product suites" through cooperation with the smaller messaging companies. "The smart pipe will be one of the areas where (telecommunications companies) will show their innovation," he said.

Of course, Obermann's own company has a venture capital division that invested $7.5-million in Pinger, so maybe on some level he knows which way the winds are turning.

With the Justice Department believing that it can get all sorts of data from telcos without any oversight or without a warrant, it seems rather important to know what kind of info your mobile operator is keeping -- and for how long. The ACLU, via a Freedom of Information Act request, was able to get a "for law enforcement use only" document that shows how long the carriers hold on to what data (Wired also notes that the document could already be found online if you knew the title). The document itself is a pretty weak scan: Thankfully, however, now that the data is out there, we can show it friendlier formats. Michael Robertson was kind enough to take the data (minus the "for law enforcement use only" part, and put it into a Google docs spreadsheet: Additionally, the folks at Wired put together a nice infographic from the data: What it seems to show is that Verizon holds onto your texting data for the least amount of time, but also retains the actual text of your text messages -- something no one else, outside of Virgin Mobile, does. How long until we see a push for a mobile data retention law to "standardize" what these companies have to hang onto and for how long?

Well, this is disappointing. As you probably know, about a year ago, Google admitted to accidentally collecting some data from open WiFi networks via its Google Street View cars. The cars were setup not just to photograph streets, but to do some location-based tracking by cataloging WiFi networks (a very common location setting technique). If you understand basic technology, you can understand what they were doing, and how it was almost certainly not to capture data from the network, but just to determine location info. Furthermore, the only data it collected was from open WiFi networks where people were transmitting unencrypted data in the open. This was data that was being broadcast.

But, lots of people don't understand technology and people around the world, including in governments, freaked out about this data collection. So, of course, people started filing highly questionable class action lawsuits. As more and more such lawsuits were filed, they were all consolidated into a single court. Earlier this year, we noted that the judge was trying to determine if Google's actions amounted to an illegal wiretap under ECPA (the Electronic Communications Privacy Act).

If you understand how wireless networks work, the idea that this is wiretapping is hilarious. And wrong. This is data that is broadcast in the open. Anyone can read it. You don't need special equipment or anything. You just need basic software to see what data is traveling across the network.

Tragically, the judge has gone the other way on this point (so far). Google had asked for the wiretapping/ECPA claim to be dismissed, as it claimed (quite reasonably) that it wasn't wiretapping. The judge put together an astoundingly confused ruling that decides otherwise. While the link here blames the wording of ECPA, which is certainly partly to blame, I think the judge's confusion over the technology is equally at fault. Basically, it's true that ECPA is somewhat vaguely worded, but it does say that:

It shall not be unlawful under this chapter or chapter 121 of this title for any person... to intercept or access an electronic communication made through an electronic communication system that is configured so that such electronic communication is readily accessible to the general public

Furthermore, the statue defines "readily accessible to the general public... with respect to a radio communication" by saying that it is the case if the communication is "not scrambled or encrypted."

So, this should be open and shut. An open WiFi network is clearly readily accessible to the general public by its nature. And the statute doubles down on that point by noting that the communication was not scrambled or encrypted, and thus is, by the definition in the statute, "readily accessible to the general public."

So we're done here. Right? Not unlawful. Except... no. The judge instead goes through some of the most convoluted reasoning imaginable to try to claim that data transmitted over WiFi is not radio communication. Say what now? It is true that ECPA was drafted before WiFi existed, but that doesn't mean it's not a radio communication. That's what all wireless communication is. It's a form of radio communication. That's just basic technology. But not to this judge. And, thus, Google doesn't get to dismiss the wiretapping charges. Hopefully they'll appeal and somewhere up the chain this will be corrected.

Various governments have tried to claim that it's no big deal to get your location data from mobile phone providers -- with US law enforcement suggesting such information shouldn't even require a warrant at times. But it's interesting to see just how much that kind of data can reveal about someone. Shane Richmond points us to an absolutely fascinating visualization put together by the German newspaper Die Zeit. Apparently German politician Malte Spitz sued Deutsche Telekom to get access to his own location and phone data (the kind of thing that governments request all the time) and then handed it over to Zeit, who put together a stunning visualization of six months of Spitz's life. You can see where he is at all times, and Zeit cross referenced the information with other public information, including Twitter feeds, blog entries and other websites, to provide context and details as to Spitz's life. Somewhat eye-opening in how much information can be put together concerning your life with access to such phone data...

Ok, so you bought an iPad in the UK with O2 and you signed up for either the 3GB data plan or the 500MB data plan. It's been a few months, and you're already recognizing how limiting those data caps are... and O2 tells you that they're already giving you too much. mike allen points us to the news that O2 has announced to many users who did not realize this, that this rate was really just promotional, and the actual data rates are really just 2GB and 200MB, despite what people thought they had signed up for. That must feel good...

As governments around the world continue to go overboard in their condemnations of Google's (admittedly bad) collection of open WiFi data via its Street View cars, much more interesting than the political grandstanding is the legal limbo mess that the collected data has been placed into. After realizing that it had accidentally collected this data, Google announced that it would stop collecting and begin deleting the data it collected (Update: more specifically, it said it wanted to delete the data, but would discuss with regulators before doing so). But that raised alarm bells from some, who worried that doing so would be deleting evidence for a possible lawsuit against Google. Then, governments started demanding that Google share the data with regulators, so they could determine how serious a privacy breach this really was. However, Google is noting that sharing the data would be a violation of privacy rights in many countries, pissing off regulators who put those privacy laws in place in the first place.

So... Google can't collect this data, but it can't delete the data it accidentally collected. Regulators want to see the data to see if it's okay for Google to delete it, but they can't see it, because that would violate privacy regulations. But, regulators feel they need to see it, to see if Google violated privacy regulations. So, basically everyone's stuck in a state of limbo.

Karl Bode, over at Broadband Reports, wrote up a great article a little while back about why Google Voice was more disruptive than anyone (especially the telcos) were willing to give it credit for being. The key underlying point: voice is just a form of data. Once you realize that, you realize that no one needs to be tied to any telco's own dialing system. Your mobile phone service provider really could just be a dumb pipe.

For years, I've always felt that the calls for "triple play" or "quadruple play" was incredibly misleading. All of the different "plays" (voice, video, data) were actually all just data. And when things are all just data, and its on an open network, then anyone can provide the services on top of that data. The telcos recognize this, somewhat -- which is why they've tried to block out others from offering certain telco services (it's why Google Voice was blocked on the iPhone), but it could be really game changing. Imagine if you could just buy a mobile phone that had no calling plan at all -- but it was all in the software? You could even use different dialers (with different numbers?) depending on what made the most sense or was cheapest.

The telcos hate thinking of themselves as dumb pipes, but there's something to be said for focusing on the pipes and making them as strong as possible, while letting everyone else innovate at the service level, and just selling good data plans. The more others innovate, the more valuable those data connections become.

Every few months or so there's an article somewhere about an insane phone bill that someone gets because they took their phone out of the country without recognizing the insanity that is international roaming rates. This time, it appears to be Mythbusters co-host Adam Savage, who's been doing a bit of traveling lately. He was recently up in Canada, and used his iPhone to do a little web surfing. And now he got the bill. Apparently AT&T wants somewhere around $11,000 for Adam's surfing and have turned off his phone until he pays. Now there will be some who say that he should have read the fine print, but considering just how often these sorts of stories pop up, at some point it's worth noting that the fine print isn't working. And... even if you grant the "fine print" premise, it's hard for anyone to figure out how these international roaming rates make any sense whatsoever. They're so far off the charts as to be unbelievable.

Anyway... next week on Mythbusters... the insanity of mobile phone bills? Can we see Jamie and Adam try to decipher hidden fees, while Grant, Tory and Kari search for the elusive accurate mobile phone coverage map? Maybe Buster can figure out what the real limits are on unlimited data plans? Hmm... maybe not.

With increasing attempts to turn internet access on in the sky, there's been some concern about people making VoIP calls from airplanes, just as there is a concern over mobile phone use in the sky being too "annoying." Some of the companies providing internet-in-the-sky have claimed that they would block VoIP calls, but that's going to be pretty difficult. As we've pointed out in the past voice is just data and you can always find a way to disguise the data, such that it won't be blocked. And, indeed, that seems to be exactly what's happening. Andy Abramson talks about how he got around AirCell's VoIP blocking when talking to a friend who was on one of these wired airplanes. There's always going to be away around those things, so unless Congress really decides to ban all voice calls on phones, why not wait and see if people chatting really is a problem?