Court: Cell Site Location Records From Five Minutes Ago Are 'Historical,' Not 'Real Time'

from the rewriting-history-multiple-times-per-hour dept

The word “historical” tends to conjure up images of musty buildings with plaques attached to them denoting the original construction and possibly who did what when, but several dozen years ago. While anything that happened just before right now could literally be termed “historical,” most people tend to associate the word with things that happened well before the exact present.

Not so much the courts, though. “Historical” data involves anything not collected in “real time,” apparently. The North Carolina Court of Appeals has ruled that something occuring at nearly any time before right now is “historical,” even if the “history” itself traces back less than ten minutes.

Superior Court Judge Lucy N. Inman signed the order and Detective Mitchell submitted it to AT&T, the cellular phone service provider and holder of the account associated with the phone number. AT&T provided the records of the location of the cell phone tower “hits” or “pings” whenever a call was made to or from the cell phone. AT&T sent emails of the longitude and latitude coordinates of these historical cell tower “hits” to Detective Mitchell every fifteen minutes. Detective Mitchell testified an approximately five- to seven-minute delay occurred between the time the phone “pinged” a cell phone tower and the time AT&T received and calculated the location and sent the latitude and longitude coordinates to him.

This location info helped track the defendant to a motel and he was arrested shortly thereafter. The defendant sought to suppress the warrantless “search” of his cell phone and its location (obtained via a phone records production order that ran from a month before it was requested to two days after the request was granted [December 10, 2012]). The location data that traced the defendant back to the motel room was acquired (with a 5-7 minute delay) on December 11.

The defendant argued that the “real time” tracking of his location violated his Fourth and Fourteenth Amendment rights (as well as analogous parts of North Carolina’s constitution). The court doesn’t buy these arguments, citing the Stored Communications Act, which allows government entities to obtain certain third party records without a warrant. It says the difference between what’s been considered unconstitutional by several courts — obtaining real-time location information with a tracking device — isn’t what’s happening here.

It argues that because the police didn’t intercept these “records,” everything is above-board, even if the sought “historical” data included two days of “records” that were created after the court order was approved.

Several courts have held the SCA permits a government entity to obtain cell tower site location information from a third-party service provider in situations where the cell tower site location information sought pre-dates the court order and where the cell tower site location information is collected after the date the court order issues. Although the former may technically be considered “historical” while the latter is “prospective” in relation to the date of the court order, both are considered “records” under the SCA. The government entity only receives this information after it has been collected and stored by the third-party service provider.

In plainer English, this means law enforcement entities can seek “historical” records from the “future,” with the mitigating factor being that the records are collected by third parties first. A short delay of a few minutes is enough to call these records “historical” under this interpretation.

In a slightly-dissenting concurrence, Judge C.J. McGee diagrees with the court’s definition of “historical” records (while finding the overall opinion valid because of the good faith exception).

Because most federal courts recognize that historical cell site information consists of information generated prior to the issuance date of a judicial order that allowed law enforcement to obtain such records for a given defendant, and because I believe allowing the majority’s characterization of the information provided by AT&T to law enforcement, based on the facts in this case, would effectively obliterate the distinction between “historical” and “real-time” cell site information, I must respectfully disagree with the majority’s characterization.

McGee points to a few details that make this “historical” location data far more analogous to real-time tracking: the fact that the court order allowed for the acquisition of cell site location records for two days past the point of issuance, that the police and AT&T remained in constant contact during the tracking of the suspect and the same short delay (“5-7 minutes”) that the majority declared made the records “historical.”

While the majority’s interpretation dilutes the meaning of “historical” by including location data yet to be generated under its warrantless wing, it does point out to possible future problems with the use of Stingray devices. These have often been deployed with the same sort of court orders, but contain the ability to track individual phones in real time. Once more details on these deployments come to light, the courts will be forced to confront a plethora of Fourth Amendment violations — at least if they’re going to remain consistent with this interpretation of “historical.”

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Companies: at&t

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Comments on “Court: Cell Site Location Records From Five Minutes Ago Are 'Historical,' Not 'Real Time'”

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Anonymous Coward says:

They were using the information, not to determine where he had been, but to determine where he was right now. They used it to follow him. That makes it real-time in effect.

And there’s another little tidbit in the decision. The prosecution submitted some documents to the court and didn’t allow the defense to see them. The appeals court says that’s perfectly fine and the documents wouldn’t help the defense. But isn’t that for the defense to decide?

Anonymous Coward says:

Re: Re:

Obviously not applicable. After all, “historical” only means “current” when the distinction would be awkward for law officers/security services/armed forces/presidential freinds/anyone else covered by current corrupt standards.

Don’t you know your humpty-dumpty? (A word means exactly what I want it to mean, nothing more, nothing less…)

Anonymous Coward says:

And the whole thing goes to hell...

Here I was actually thinking that we were seeing some small progress lately, but this would open up a huuuge loophole the size of the moon… or am I completely wrong?
If data can be used without a warrent by setting up someone else to collect it and delay it by 5 minutes, then it opens up a whole lot for every agency, as I see it.

Anonymous Coward says:

Re: And the whole thing goes to hell...

The ultimate goal is a police state where speaking out against the police gets you sent to a for profit jail and essentially work as a slave for the rest of your life.

No matter what small gains are made as long as those people are in power it will never go away just keep coming back stronger and stronger.

radix (profile) says:

It should be obvious, but if the data is being used to track where is person IS rather than where a person WAS, then it’s kind of hard to argue that the actual (“historical”) data only shows where a person WAS rather then where he IS.

Law enforcement wants it both ways: “We only want to see where he was 5 minutes ago, so it’s not real-time tracking.” And: “Give us a warrant, he’s still there.”

Anonymous Coward says:

Re: Re:

Actually, no, there’s good reason for the difference in price – current information if very, very, valuable. Trades in the millions of dollars live or die by milliseconds in the delay of the information used to decide them, if that. Once trade data is 15 minutes old, it has long since lost any value to traders, which is why it is typically release free by the exchanges.

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