Debate Club: Should Police Need A Warrant To Get Your Location From Your Mobile Phone Provider?

from the debate-it-up dept

US News runs some online debates, in which they bring together a bunch of experts to debate a particular topic of interest, allowing readers to vote on which arguments they agree with most. This week, they’re debating if police should need to prove probable cause in order to get a warrant to get your mobile phone location (and potentially track you). There’s a great opening argument from Senator Ron Wyden, who worries about the possibility for abuse:

While having access to geolocation data is clearly useful for law enforcement agencies, without the resource limitations that used to discourage the government from tracking you without good reason, the limits on when and how geolocation data can be accessed are unclear. A police department, for example, might not have the resources to follow everyone who lives within a city block for a month, but without clear rules for electronic tracking there is nothing to stop it from requesting every resident’s cellphone location history.

Obviously, we expect people to see us when we step out onto the street each morning, but we don’t expect those people to track all of our movements over the course of days, weeks, months, or even years.

Also on his side (in this debate) is Rep. Jason Chaffetz, who makes a straightforward 4th Amendment argument, the ACLU’s Catherine Crump, who not surprisingly focuses on the privacy arguments and Jennifer Granick from the Center for Internet and Society talking about how the lack of a warrant requirement leaves the system wide open to abuse by law enforcement.

Who can possibly argue against all that? Well, there’s Joseph Cassilly, who had been the president of the National District Attorney’s association. His basic argument is that having easy access to this data makes the job of law enforcement easier:

A recent example of this was in a gang shooting in my jurisdiction wherein an anonymous caller who feared gang retaliation if his identity was known gave the police the identity of two gang members who committed the murder. The police received cell phone information regarding these individuals from prior arrest reports. The cell-site historical information for the time of the killing shows that those two cell phones were hitting off the same tower at the same time in the area of the murder.

Nice story, but there is nothing in the Constitution that says we need to make law enforcement’s job easier. In fact, it’s the opposite. The reason we have a 4th Amendment is to make law enforcement’s job more difficult. But that’s a choice we make as a free society, recognizing that protecting our civil liberties and freedoms is an important barrier to inevitable law enforcement abuse.

Also in favor of easier spying on people is Rep. Trey Gowdy, who seems to argue that using your GPS data to track you is no different than other “advancements” like “DNA analysis, fingerprint analysis, voice exemplars, blood spatter, or court-approved wiretapping.” Gowdy is a bit more middle-ground here, suggesting the importance of privacy, but saying he thinks that location data should require a “lower standard” for a warrant than probable cause. Of course, the problem there is that the whole “probable cause” bit comes to us from The Constitution. So, changing that is difficult.

Either way, you can check out the full arguments and vote for which ones you find most compelling…

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Comments on “Debate Club: Should Police Need A Warrant To Get Your Location From Your Mobile Phone Provider?”

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42 Comments
Josh in CharlotteNC (profile) says:

I don’t understand how Cassilly’s example argues against not needing warrants.

“wherein an anonymous caller who feared gang retaliation if his identity was known gave the police the identity of two gang members who committed the murder.”

While I am not a lawyer, and don’t know if that strictly fits the probable cause definition alone, a credible anonymous tip seems to fit a reasonable suspicion that could be spelled out in a warrant for that information. If that isn’t quite enough, then add the anonymous tip to some other information about the suspects – you know, just the kind of thing the police are supposed to do when building a case – and get your warrant that way.

Lord BInky says:

Re: Re:

That’s exactly what I thought. The best part is… with a good warrant they would check specifically to see if the two cell phones where in the vicinity at the time of the murder and nothing more.. Then they would get another warrant with the information they just obtained so they could act further….

Ninja (profile) says:

When there’s great need for some sort of wiretapping or activity monitoring it’s usual for these judicial processes to be given high priority in the judicial system. If the Police has enough arguments it won’t need more than 1 day to get a warrant. Warrants are a way to prevent abuse (and we know how the Police can go and abuse its powers).

It’s not up to debate if you think about it, they must get a warrant before tracking any1.

Fanic says:

Cell Phone = Me??

I am sorry but since when is a cell phone location mean I myself is there. Normally to get DNA at a crime scene you had to be there are be part of an elaborate set-up. I lend out my Cell Phone to my family and friends if they lost theirs or theirs died for some reason. Hell I have lost Cell Phones and needed to get another one. How does the location of an item that is in no way connect physically to my body a way to prove I was somewhere. If they tapped the phone and recorded my voice at the same time the location proved I was there FINE, but not just the location of the phone.

The Infamous Joe (profile) says:

Rephrase

This debate could be better phrased as “Should police need a warrant to obtain information you’ve shared with a third party?”

It doesn’t change the answer, for me, but it might for some people who are on the fence. I still think any time the police require information from a third party, that party should have the ability to say “No” unless the police have a warrant.

Digitari says:

Re:

yes because we all know IP address’ and phone locations are ALWAYS correct..didn’t you know that??

Of course law enforcement should be easy, that way any Monkey can do it….

think of all the money we’d save in not having to train anyone any longer, why is everyone for spending so many Tax dollars, sheesh..

/possible Bob contagion

DH's Love Child (profile) says:

Re: Re:

Um… I think this was sarcasm, but…

The the location information they are requesting from the carrier would be far more reliable than an IP address. Carriers location data is required by law to be accurate to within certain parameters by the FCC for 911 purposes.

Also, this is cell tower data, which you can bet your ass is accurate. the only way it wouldn’t be is if the carrier manipulated it, which would be easily apparent.

Haywood (profile) says:

Electronic leash

I don’t own a cell phone, mainly because they are an electronic leash. The police tracking you by it is just a natural extension of that. Not to say that they should have unfettered access that, but you know they will, one way or another eventually.
I’d never own a car with Onstar for similar reasons.
There are times I do wish I had a cell phone, but it 2 or 3 times a year for a minute or 2. Hardly enough to give up privacy on that scale, not to mention the expense.

Noah Callaway (profile) says:

I think an important exception that should (must) be made is in the event of an emergent crisis.

For example, if you call 9-1-1 but are seriously injured or incapacitated, they should be able to use your mobile phone to determine your location.

That being said, I think this should be severely limited (only to be used during emergent crises; only to be used on a phone that has recently dialed 9-1-1 or other emergency line; etc)

DH's Love Child (profile) says:

Re: Re:

as Varagrix noted, wireless carriers have had location for 911 for a while (the origial FCC deadline for meeting accuracy requirements was October 2004, but it kept getting extended), but that information already goes directly to the 911 call center.

The information that this article referred to is location derived from cell tower data, which is usually less accurate, but can still be useful (if you can see which towers a phone call used, you can get a pretty good idea of the course the phone traveled).

Anonymous Coward says:

If we wish to make the job of the police easier, just do away with the Bill of Rights, after all they would not abuse this power would they?

Oh wait didn’t the founders establish the Bill of Rights expressly because of the abuses by the police and military of King George.

We all ready have so many laws on the books that everyone is guilty of something each and every day.

TtfnJohn (profile) says:

If you have nothing to hide...

Part of me wonders how soon it will be before some AC shows up to make that statement which nicely bypasses the reality that we all have some things we hide which have nothing at all to do with illegal acts.

It’s this reality that tyrants and wannabe tyrants exploit to the maximum to control their populations or those who they are in contact with. Police agencies, sadly, fall into this as do some of their “supporters”. Why bother with warrants when just doing it is easier? And it could be a bother to find a compliant JP in the middle of the night to grant that warrant, you know. They just get in the way. It’s easier to hack into “the baddies” smart phone and grab the data that way.

J Edgar Hoover operated that way and struck the fear of God into low level crooks all the way up to the White House as one of the results. Joe McCarthy did much the same.

Requirements such as probably cause and the actual obtaining of a warrant is designed to lessen the chance that police can abuse their considerable power. It’s all in the aid of preventing police from crashing down doors in the middle of the night for no reason or cause. All of which still happens even with all the safeguards in place.

Just as importantly it stops lazy police work. That they have to justify the need for a warrant in front of what is hoped to be a legally disinterested 3rd party may have the effect of them doing their homework.

Warrantless tracking of a person via their smart phone’s GPS should be done, it at all, in only the most extraordinary circumstances. Government and, by extention, police, shouldn’t have and don’t need cart blanche to know where we are at every moment of the day and night no matter how much they may think they need it and should only get it in specific circumstances for specific purposes.

Anonymous Coward says:

I am really saddened to see that, of all people, Joe Cassilly is one of only two people US News tapped to make the “law enforcement” argument in this debate. As commented PBC notes, he’s also the prosecutor responsible for charging a motorcyclist under Maryland’s wiretap statute for recording his interactions with an off-duty LEO during a traffic stop (an interpretation of Maryland law that has been repeatedly smacked down by the courts, serves no purpose other than to harass defendants and chill criticism of police, and one directly at odds with guidance given by Maryland’s state AG and the US DOJ.) Cassilly is also an inarticulate buffoon. Trey Gowdy is only a marginal improvement. With standard bearers like these, it’s none too surprising that arguments like Wyden’s would appear more compelling.

BUT! It’s really important to consider where the two main sides of this debate really stand. Wyden, Chaffetz, and many others are arguing that obtaining location data from cell phone providers should require a search warrant based on probable cause, regardless of whether police are just trying to get records that the cell phone provider keeps anyway. In other words, they don’t seem to distinguish between the scenario where police actively try to track a person in real time by peeking at the GPS data being generated by a person’s cell phone, or some hidden app planted on the phone, and the scenario where police just want records from a cell phone provider about which tower a particular phone used in the past. I think the latter category is much less intrusive, and generally speaking, the law lets police obtain records held by third parties more easily than engaging in a more direct search.

The alternative to requiring a search warrant for these third party cell tower records isn’t to let police get them any time they feel like it. It’s to require them to go get a court order, but something that’s less complicated and time consuming than an all out search warrant. That’s what police are required to do in most places under existing law. So the difference between what Ron Wyden wants and what Trey Gowdy wants really boils down to whether, when police go into court, they need to spell out in a 20-page affidavit why there’s probable cause to believe the data they seek is relevant to their criminal case, or whether they can articulate in a page or two some specific facts indicating that it’s relevant. Either way, a court has to look at the application (and a judge can ask questions about it) and then has to sign off on it before police get to serve it on the cell phone provider.

It’s nice that US News is hosting a debate on this issue, but it would be far better if there could be a real debate, where the participants talked about what the alternatives were. Pounding the table about privacy and the Fourth Amendment on the one hand, and the horrible threats of dope dealers and cop killers and terrorists on the other, is all well and good. But it’s not very elucidating for the rest of us.

John Fenderson (profile) says:

Re: Re:

The alternative to requiring a search warrant for these third party cell tower records isn’t to let police get them any time they feel like it. It’s to require them to go get a court order, but something that’s less complicated and time consuming than an all out search warrant.

In theory, I’d be OK with this, but I have severe reservations. I could see it easily becoming like the FISA court: pretended oversight that still allows law enforcement to engage in widespread abuse, only with a court’s blessing.

In my opinion, law enforcement has become oppressive enough that it is in society’s best interest to make things generally as difficult as possible for them.

Anonymous Coward says:

Re: Re: Re:

I understand your reservations. But it’s worth underscoring that this is what police are doing now, and have been doing for years. I’m pretty sure there’s no jurisdiction (in the US) where police are getting any cell phone location records without a court order. Some courts have found that a warrant is required, but many, many courts have signed off on these other types of court orders, and I’d be really interested to know if people think the use of these less-than-a-warrant court orders has been abusive or problematic (in a way that would be fixed by requiring a warrant instead). I’m not saying that facetiously – I think it’s actually a good exercise in this debate to try to come up with a scenario, even a hypothetical one, where requiring a warrant, instead of some other court order based on “specific facts” instead of “probable cause,” makes a significant difference for the privacy of individuals.

I’m guessing that one could come up with some scenarios, and there might be some that have actually occurred, but if you’re really dead set on requiring warrants, it’s good to try to figure out how much of a difference they make in practice. And by the same token, if one is dead set against requiring warrants, it’s helpful to try to figure out how much extra time and effort it takes to get a warrant, instead of some other kind of court order.

I think Mike, like Ninja below, underestimates the time and effort required to actually get a search warrant. Judges may be willing to quickly approve warrants on the phone for searching property that’s been secured temporarily, but I don’t think that’s the norm. And if judges are doing quickie warrants on the phone, I’m even less convinced that that sort of procedure is so much better than requiring a court order that’s not quite as powerful as a search warrant.

Anonymous Coward says:

Since this is supposed to be a debate and eveyrone seems to be on the same side (Big suprise):

Lets say your mother is gang raped and for whatever reason the police could catch them by using cell phone data and they needed to find them now or all of the evidence would be destroyed. Would you still stand on your perch and defend the rapers right to privacy? Would you still say they had to go through the red tape of getting a warrant?

Extreme case, I understand, however it only takes one to make it worth while in my book.

Mike Masnick (profile) says:

Re: Re:

Lets say your mother is gang raped and for whatever reason the police could catch them by using cell phone data and they needed to find them now or all of the evidence would be destroyed. Would you still stand on your perch and defend the rapers right to privacy? Would you still say they had to go through the red tape of getting a warrant?

Nice appeal to emotion, rather than logic.

Simple question: what does any of this have to do with getting a warrant? Getting a warrant is not a difficult process. Suggesting it’s “red tape” shows little knowledge of how easy it is to get a warrant. And, in cases where there’s imminent risk or danger of evidence being destroyed there already *is* a process, that allows them to get the data and retroactively get a warrant. So, there is no reason that a warrant can’t be sought in this case too.

Ninja (profile) says:

Re: Re: Re:

Easy and fast. Sometimes even when there’s danger of evidence destruction the judicial system can be unbelievably fast and grant the warrants before the Police will need to get them retroactively.

What amuses me is that his way of thinking shows the same logic that makes ppl assume we need further legislation for online crimes when they are already traceable and punishable by our current laws. They are thinking with some part of their body other than their brain. Possibly their intestines.

ltlw0lf (profile) says:

Re: Re: Re:

Simple question: what does any of this have to do with getting a warrant? Getting a warrant is not a difficult process.

I don’t understand this concern either, as there is already exigent circumstances, but also because the phone doesn’t belong to the person who currently possesses it, and therefore has no right to privacy with it. I can call my phone company and tell them that I have a police report for my stolen phone, and they can contact the police department with the current location of the phone without a warrant.

There is no reason, beyond evidence being in plain sight and exigent circumstances, why a warrant should never not be required. And a warrant should be required to obtain location information from a phone as much as it should be required for a police officer to search a phone.

Josh in CharlotteNC (profile) says:

Re: Re:

Would you still stand on your perch and defend the rapers right to privacy?

Yes, I would stand on my perch and defend their right to due process, and privacy against unreasonable searches.

Why? Because that situation is so easy to turn around right back at you.

You’re at a party. You leave the party early, but have dropped your phone, which remains behind. The aforementioned rape happens after you leave.

Would you expect the police to do their jobs and investigate, following due process, or should they accuse you of rape after they’ve pulled the phone records they got without any other evidence?

Let me be clear: I have no problems with police using phone location data, provided they are using it responsibly, following due process, and using it as one piece of evidence among many that point to the same conclusion.

Extreme case, I understand, however it only takes one to make it worth while in my book.

Exactly the way I feel. Even one case of an innocent person being convicted of a crime they did not commit is too much.

Mr. Applegate says:

Well...

You know we are going to criminalize everything. We are going to force everyone to buy insurance. We can’t be bothered with probable cause. We can’t be bothered with due process.

Here is the easy fix. Lets just put GPS locator anklets on EVERYONE. With that we can also add bluetooth connectivity and then you must pair your anklet to your car to drive; a computer, to gain use; a door to open; to buy anything…

While we are at it we can run a wire under your skin, up your leg, torso and neck and mount a third eye above the two you come equipped with. If covered you will be shocked. The images will be transmitted to datacenters and stored for 2 lifetimes and be the IP of .GOV, made available to any government entity freely, but if you want to see any portion of your data you will need to pay $1M per meg. Oh, may as well record and store the audio too.

Of course this is all for the safety of the children and the protection of IP owned by those poor mistreated RIAA and MPAA members.

I own the IP (Copyright, Patents, and Trademark) for all of the above. So when the Government is ready to implement please see me. I am thinking a cost of $1,000,000,000,000 per user (non transferable). I retain all rights to hardware, software and anyone wearing my device or accessing data from the device, or seen or heard on the device. I also retain rights to anyone who has never heard of, seen or worn my device.

OR we could just use common sense, but that seems to be not so common anymore.

Rapnel (profile) says:

Tracking must be made to require a warrant.

If you do not have probable cause you have no right, acting as an agent of the (this) government, to track your citizens. However, recognizing that instances like those mentioned above can and do happen, I would deem it essential that tactical situations require a firmly embedded and streamlined (say less than 30 minutes) judicial approval process. “You have 30 minutes, this better be good.”

If you have excuses you’re not worthy of the positions we allow you to hold.

We’re creating a monster. If we don’t kill it soon it will get bigger. The future is coming.

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