Correlation != Causation

somewhere the corpses of daniel boone and davy crockett are shaking and saying, in essence, that this was not why they lived and died.

If banks proceed with this they will be setting themselves up for multiple lawsuits because:

The Unconstitutionality of SCA 18 U.S.C. 2703 (d)

Notwithstanding the fact that there is much good that can come from the legitimate (warrant based on probable cause) acquisition of Cell Site Location Information (stored/historical or real time).

Currently, the exact street by street traveled path of wherever you carried your cell phone is recorded and saved for several years by your cellular service providers (CSPs) and will be handed over to an investigative body who has obtained a court order under SCA 18 U.S.C. 2703 (d).

A court order is issued under a less stringent standard ,”a showing of specific and articulable facts”, instead of the highest level of 4th amendment constitutional protection, a warrant based on probable cause see, (http://www.volokh.com/2011/01/11/2703d-orders-in-the-news-no-really).

One may postulate, oh! I’ll just get around this type of intrusion by carrying an old phone or burners (disposable phones). Yeah, sure, well guess what, we pass through hundreds of cell towers every day. If you have 2, 3, or 4 phones in your car every several seconds they send out signals to cell phone towers and this is how your location is mapped. Your 2,3, or 4 phones are the only phones that would have traveled that same mapped path so by them having your regular phone number they can easily see what phones followed the same cell tower to cell tower path and thus get your burner numbers as well.

One may rationalize by saying, “they can’t pinpoint my exact location”. That may have been the case as of yesteryear but in today’s ever changing world, because technology increases with our every breath they now have what’s known as a femto cell, (see, http://www.techrepublic.com/blog/data-center/pros-and-cons-of-using-femtocells/) which can pinpoint a cellular phone location up to within ten meters (i.e. to a particular floor, apt, address, etc.)

Another thing worthy of mentioning is the fact that local, state and federal police throughout the U.S. has purchased the ultra expensive stingray (cell tower simulator) device …see, (http://www.ibtimes.com/police-departments-18-states-use-stingray-tech-track-cell-phones-they-wont-talk-about-it-1694552 ).

This device tricks a cell phone into thinking it’s the cell tower and thus all information that would have been relayed to a cell tower is now relayed to the stingray device. No doubt this information has been used, to some degree, to help obtain a court order under SCA 18 U.S.C. 2703 (d).

Once a court order is obtained now law enforcement can get real time and stored/historical CSLI on a person’s regular phone and any additional phones that person may have and thus build a case based on this violation. Under the more stringent standard of a warrant based on probable cause a warrant would have never been issued under these circumstances.

If you’ve been meeting twice weekly with your phychiatrist, they know you were there.

If you’ve been cheating on your spouse at a hotel that info is saved, all mapped out, and waiting.

If you commit a crime at a particular time and you have your cell phone on you…busted.

If you’ve regularly attended AA meetings, church meetings, mind your business meetings they can pull all that up .

If you live an alternative lifestyle (undercover) and you visit those types of establishments ….guess what…there’s a record.

If you just like to be alone and enjoy sitting in the park for hours on end there’s a record of that.

If there is no semblance of fairness as to who is targeted (white, black, chinese, asian, etc.) this would most certainly “shock the judicial conscience” as well as help to upend much of the progress that has been achieved in the social arena.

We the People deserve to know the ratio of nationalities targeted via CSLI/HCSLI, people and crime types. Cellular phones and their residual matter (Cell Site Location Information [CSLI], and Historical Cell Site Location Information [HCSLI] ) have the potential to be a great benefit to humanity or a draconian tool to be used for sinister purposes, i.e. implanted chip.

Yes, I say implanted chip because a cellular phone offers the same, if not more, benefits or ill effects (depending on the person’s perception) as an implanted chip (i.e. location tracking, allows a person to buy and sell, etc..(see, http://www.thenewamerican.com/tech/computers/item/17688-rfid-implants-the-benefits-vs-the-dangers). Can we really name one pertinent thing that an implanted chip can do that a cellular phone cannot do? Just one example of many.

This is the way to correct this violation… (keep in mind, under this approach our current third party doctrine need not be amended on this issue. As we shall see, cellular service providers are “agents”, because they collect this data at the behest/instigation of the government ( as per FCC rule E911).

Since CSPs are “agents” as well as private entities, all said information they acquire and relinquish, regardless of ownership, can only be achieved under the fullest “panoply of constitutional protections”.

In order to prevail on the issue of CSLI/HCSLI and mandate its requiring of a warrant to obtain, one must first attack the constitutionality of SCA 18 U.S.C. 2703 (d) which allows the obtaining of historical/real-time CSLI with a court order… see Auguststine (not agreeing with the courts sending it back to see if there was probable cause for a warrant. The standards of showing are different so they’re not interchangeainble.

In order to prove this unconstitutionality we must first cleary understand that the “[The Fourth Amendment] is wholly inapplicable to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the Government or with the participation or knowledge of any governmental official.”…See United States v. Jacobsen (1984) 466 U.S. 109, 113 . We shall see that this is clearly not the case with this issue.

Secondly, we must significantly show that the private citizen/entity (cellular service provider) was acting at the behest or instigation of the government, or exhibited one or more of many conducts as outlined in the following court cases : Skinner v. Railway Labor Exec. Assn. (1989) 489 U.S. 602, 614. ALSO SEE Coolidge v. New Hampshire (1971) 403 U.S. 443, 487 [“The test [is whether the citizen] must be regarded as having acted as an instrument or agent of the state”] ; Lustig v. United States (1949) 338 U.S. 74, 78 [“[A] search is a search by a federal official if he had a hand in it”] ; People v. De Juan (1985) 171 Cal.App.3d 1110, 1120 [search at officers’ “behest or instigation”] ; People v. Fierro (1965) 236 Cal.App.2d 344, 348 [“In brief, the question is one of the extent of government involvement in an invasion conducted by the private citizen.”] ; People v. McKinnon (1972) 7 Cal.3d 899, 912 [Fourth Amendment applies if officers “hired and paid” the person to conduct warrantless searches,” or if he were to “open and search a specific package at [their] express direction or request”]; People v. Bennett (1998) 17 Cal.4th 373, 384, fn.3 [civilian was acting at an officer’s request]; Dyas v. Superior Court (1974) 11 Cal.3d 628, 633, fn.2 [exclusionary rule will be applied if officers “requested the illegal search”] ; People v. North (1981) 29 Cal.3d 509, 514 [search “performed in conjunction with, or cloaked in the authority of the state”] ; U.S. v. Bruce (6th Cir. 2005) 396 F.3d 697, 705 [“[T]wo elements must be shown in order to treat ostensibly private action as a state-sponsored search: (1) the police must have instigated, encouraged, or participated in the search; and (2) the private individual must have engaged in the search with the intent of assisting the police.” Citation]; People v. Warren (1990) 219 Cal.App.3d 619, 622 [“The relevant factors used in determining whether the governmental participation is significant, or de minimis, are (1) the government’s knowledge and acquiescence, and (2) the intent of the party performing the search.”]; U.S. v. Attson (9th Cir. 1990) 900 F.2d 1427, 1433 [the citizen “must have acted with the intent to assist the government in its investigatory or administrative purposes and not for an independent purpose.”]; U.S. v. Attson (9th Cir. 1990) 900 F.2d 1427, 1433 [the citizen “must have acted with the intent to assist the government in its investigatory or administrative purposes and not for an independent purpose.”] ; and, U.S. v. Shahid (7th Cir. 1997) 117 F.3d 322, 325 [a “critical” factor is “whether the private party’s purpose in conducting the search was to assist law enforcement agents or to further [his] own ends.”]

SCA 18 U.S.C. 2703(d) is unconstitutional because the U.S. Supreme Court decisions of Lustig, Byars, and countless succeeding federal and state cases that says, ‘anytime the government (police, federal agent, etc) significantly use a private citizen/entity (cellular service provider) as its agent (state actor) in acquiring evidence against someone this invokes the “full panoply of constitutional protections” (i.e. …a warrant based on probable cause is needed), see. Owen v. State of Indiana, 490 NE.2d. 1130, at 1136 (1986) in reiterating N.Y. v. Ray, 65 N.Y.2d 282, at 286, “Private conduct, however may become so pervaded by governmental involvement that it loses its character as such and invokes the full panoply of constitutional protections”., also; (People v Jones, 47 N.Y.2d 528; People v Esposito, 37 N.Y.2d 156, 160;People v Adler, 50 N.Y.2d 730, 737; Corngold v United States, 367 F.2d 1.) Relevant indicia of State involvement, which may transform private conduct into State action, include: a clear connection between the police and the private investigation (People v Horman, 22 N.Y.2d 378, 380); completion of the private act at the instigation of the police (People v Esposito, supra); close supervision of the private conduct by the police (People v Esposito, supra); and a private act undertaken on behalf of the police to further a police objective (People v Adler,supra).

When we apply the criteria found in U.S. v. Cleaveland (9thCir. 1995) 38 F.3d 1092, 1093 to determine if CSPs are “agents” for 4th amendment purposes, [“[T]he relevant inquiry is: (1) whether the government knew of and acqiesced in the intrusive conduct; and (2) whether the party performing the search intended to assist law enforcement efforts or further his own ends.”] we see that CSPs are “agents” for fourth amendment purposes.

In applying the criteria set forth in U.S. V. Cleaveland we see, with respect to (1), that yes, because of Rule E911, the government clearly knew of the intrusive conduct, and since the government created Rule E911, and set its parameters their level of acquiescence can only be said to be fully activated .

With respect to (2), since E911 mandates that all CSP’s collect this information for E911 purposes , to be turned over to the government , their assistance to the government is etched in stone.

In U.S. v. Lambert (6th Cir.1985) 771 F.2d 83, 89 the court has said, [“First, the police must have instigated, encouraged or participated in the search. Second, the individual must have engaged in the search with the intent of assisting the police in their investigative efforts.”]. 29 (7th Cir. 1997) 117 F.3d 322, 326.

When applying the standard set forth in U.S. v Lambert we see that by the government’s implementation of Rule E911 they not only instigated and encouraged the search but orchestrated it as well. Secondly, we see that E911 requires all CSP’s to turn over this information for E911 purposes, i.e. “to assist the police in their investigative efforts”.

This statute also fails to pass constitutional muster when both the “public function test” as well as the “Lugar test” is applied to its situation.

The “public function test” states that a private entity will be considered a state actor if the private entity assumes or is delegated a power “ traditionally exclusively reserved to the State”, see Jackson v Metropolitan Edison Co., 419 U.S. 345, at 352 (1964).

In our society collecting evidence for criminal trials has always been traditionally exclusively reserved to the State/Government. When FCC Rule E911 delegated this resposibility to cellular service providers this provided more than enough “nexus” to satisfy the “signicant” requisite for classifying them as “actor/agents” for fourth amendment purposes.

When we apply the “two part test” that the “Lugar Test” outlines to this issue we see that it too dictates that cellular service providers are state/federal actors /agents for fourth amendment purposes.

The first part of the Lugar Test states that the deprivation must be caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the state or by a person for whom the State is responsible.

The deprivation occurs in the relinquishing of a person’s CSLI/HCSLI by cellular service providers at the behest of the government under the rule of conduct as outlined in rule SCA 18 U.S.C. 2703 (d), and precipitated by FCC rule E911.

These two rules cannot coexist on the same platform without conflict. The very nature of FCC rule E911 rightly delegates all cellular service providers as actors/agents of the State and thereby activaties the fullest umbrella of 4th amendment constitutional protections , as well as, provides more than sufficient evidence of agency .

The only way FCC rule E911 can exist, that is to fulfill its mandated obligations is if all participants abide by the most strictest adherence to 4th amendment protocols, i.e., a warrant based on probable cause; Therefore, SCA 18 U.S.C. 2703 (d) is unconstitutional because it allows for a lesser standard (specific and articulable facts ).

The second part of the Lugar Test states, the party charged with the deprivation must be a person (entity) who may fairly be said to be a state actor. This may be because he is a state official, because he has acted together with or has obtained significant aid from state officials, or because his conduct is chargeable to the State.

The party charged with the deprivation are the cellular service providers while already established as “actors/agents” of the State /Government and their conduct is chargeable to the Government , both because of their obligations instigated by, instructed upon, and mandated by the implementation of Rule E911 prior to enactment of SCA 18 U.S.C. 2703 (d).

What had substancially officiated and cemented all cellular service providers statuses as agents/actors for the government was the “significant” nexus that was created in or around 2000 when the government’s FCC issued a set of rules, called the Enhanced 911 rules (E911 rules), that mandated all wireless carriers to collect precise location information in the near future in order to improve the delivery of emergency services…See, The Mobile Wireless Web, Data, Services and Beyond: Emerging Technologies and Consumer Issues, pg. 9… published by the Federal Trade Commission, by Robert Ptofsky February,2002,..see, (https://drive.google.com/file/d/0B1q7pqeJ0PWGbmJqNVVkVnJSN0h4cHRSQ2hyWnZienR5YlJz/view?usp=sharing) .

When you view this staff report you will get a unique pre-cell era view of this issue, uncorupted by the passage of time, from the mindset of a diverse consortium of individuals who we at the forefront of pioneering cellular technology, rules, and safeguards.

For instance, at the workshop which the aforementioned “report” pertains to, there was consensus as to the uncertainty of who CSLI (historical and real time) belongs to.

We the People deserve to know who designated this newly developed, highly sensitive, and clearly outside the traditional boundaries of normal protocol who designated a citizens CSLI the property of cellular providers when all cellular providers were required to collect and retain this information at the behest of the government (see Rule E911).

We the People deserve to know who designated this newly developed, highly sensitive, and clearly outside the traditional boundaries of past protocols, we need to know who designated that every U.S. citizens CSLI/HCSLI the property of cellular providers when said ownership was clearly uncertain back in 2000.

We the People deserve to know who, how, and when the original intent of the government to collect this newly developed sensitive information evolved and transformed into criminal investigations , without using the strictest safeguards of 4th amendment protections.

We the People deserve to know how the keenest legal minds in the United States government allowed legislators to enact SCA 18 U.S.C. 2703 (d) unchecked, knowing full well cellular providers were government ‘agents’ for fourth amendment purposes and thus any information acquired by them at the behest of the government could only be turned over by abiding by the strictest of 4th amendment constitutional protocol with respect to CSLI and HSCLI information? There must be accountability to curtail this behavior in the future.

Notwithstanding the meritorious work and energy sacrificed by our devoted hardworking legislators… We the People deserve to know if any other legislators who helped to vote SCA 18 U.S.C. 2703 (d) into being profited from the 5 to 9 billion dollar a year average the Harris Corporation (HRS) made over the years since this unconstitutional enactment, see . The Harris Corporation is the company that makes and sells the devices that capture CSLI and they have been selling these devices to police departments throughout the U.S. .

We the people deserve to know if any of these legislators had investments in Harris Corporation, or its subsidararies , or in any one of the investment companies that hold Harris Corp stock and thus profited from the more than $100 billion dollars made to investors as a direct result of their unconstitutional enactment.

The Wise and Honorable Justices have said in Union Pac. R.Co.V.Botsford. 141 U.S. 250, at 251, “No right is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law”….and,

The Well-balanced Justices of the court has said in Terry v Ohio 392 U.S. 1, at 15 “Under our decision, courts still retain their traditional responsibility to guard against police conduct which is overbearing or harassing, or which trenches upon personal security without the objective evidentiary justification which the Constitution requires. When such conduct is identified, it must be condemned by the judiciary and its fruits must be excluded from evidence in criminal trials”…most notably,

The Honorable and Well respected Justice Frankfurter has said in Lustig v United States, 338 U.S. 74, at 78-79, “[A] search is a search by a federal agent if he had a hand in it***the decisive factor in determining the applicability of the Byars case is the actuality of a share by a federal official in the total enterprise of securing and selecting evidence by other than sanction means. It is immaterial whether a federal agent originated the idea or joined in it while the search was in progress. So long as he was in it before the object of the search was completely accomplished, he must be deemed to have participated in it”….also;

The Prestigious Justices of the court have said in Byars v United States, 273 U.S. 28, at 33-34, “The Fourth Amendment was adopted in view of long misuse of power in the matter of searches and seizures both in England and in the colonies; and the assurance against any revival of it, so carefully embodied in the fundamental law, is not to be impaired by judicial sanction of equivocal methods, which, regarded superficially, may be seen to challenge the illegality but which, in reality, strike at the very substance of the constitutional right.”…in addition,

The Honorable Justice Bradley (S.D.N.Y.) Boyd v. United States, 116 U.S. 616, at 639 has said more than 85 years ago, in delivering the opinion of the court, ” It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon. Their motto should be obsta principiis. We have no doubt that the legislative body is actuated by the same motives; but the vast accumulation of public business brought before it sometimes prevents it, on a first presentation, from noticing objections which become developed by time and the practical application of the objectionable law.”

Lastly, the initial violative action in our judicial system with regards to this issue occurred with the application of SCA 18 U.S.C. 2703 (d). A poisonous rule or statute is far, far more damaging and destructive than a single piece of poisonous fruit (evidence gained through illegal or unconstitutional means or methods) for it gives rise to baskets upon baskets of poisonous fruit that has already rotted the bellies of many of our citizens and which is poised to poison our very nation. So to correct the problem we must attack the problem at its roots, i.e. the initial violation.

In closing, our judicial system is not perfect but is a system that can only work if we meticulously safeguard all elements of our Constitution. When we sacrifice one mustard seed weight of our constitutional rights for a paltry gain, sinister intent, or for whatever reason the end result can only lead to chaos, nonconformity, and inconsistency in our courts decisions, judicial mindset, along with increased mayhem in society…as we see today with this issue, this, in addition to the countless snowballing detrimental effects from such violation(s).

We must send a message and put safeguards in place that will insure our predecessors will be spared the turmoil that we see is evident from such actions….

Still working on it…please add to it…

Thanks.