Another Federal Judge Says No Expectation Of Privacy In Cell Site Location Info Because Everyone Knows Phones Generate This Data

from the because-TV-shows-about-cops dept

In the Seventh Circuit — where there’s currently no Appeals Court precedent on cell site location info (CSLI) — federal judge Pamela Pepper has decided only about half of what other courts have said about this info’s expectation of privacy applies. That would be the half that finds the Third Party Doctrine covers cell phones’ constant connections to cell towers. (via

Three circuits (4th, 5th and 11th) have ruled on whether obtaining CSLI from providers constitutes a search or seizure under the Fourth Amendment. Only the Fourth found that this information deserved greater privacy protections, mainly because of the ubiquitousness of cell phones. The other two held that CSLI is just another business record, even if it is the sort of business record that generates a detailed history of someone’s movements and can be used to track someone in near real-time.

The Supreme Court also had something to say about the long-term tracking of people’s movements in its decision about GPS tracking devices. While not exactly the same thing, it was close, and the court here examines this decision as well. The government suggested long-term location tracking might have enough Fourth Amendment implications to justify a warrant requirement, but stopped short of making that call.

With these non-precedents in hand, Judge Pepper finds there’s no expectation of privacy in cell location info because — like the government has argued in other cases — everyone should know their phones are acting as ad hoc government tracking devices.

This court disagrees that today, when many Americans own some sort of cell phone and carry it frequently, an individual’s expectation that the government could not track his whereabouts over time is reasonable. The media is rife with information—and sometimes warnings—about the fact that one’s location can be tracked from one’s cell phone.


Popular culture promotes the notion that the government, too, can determine extensive information about an individual from, among other things, one’s phone. In 2013, the news was filled with former National Security Agency contractor Edward Snowden’s revelations regarding the extent to which the NSA allegedly was collecting phone metadata without warrants or court orders; controversy continues regarding whether such a practice was justified, necessary or lawful.

As long ago as 2004, the popular HBO series “The Wire” devoted an episode to the use of the disposable prepaid cell phones used by the drug-dealing characters in the show.

Because of the pervasiveness of this info, Judge Pepper argues that everyone show know that cell phones generate location data and that the government can access this information without a warrant. The first assertion is likely true. People are mostly aware that their phones connect with cell towers and that they’re constantly being asked by websites for permission to use their location info, etc. But it’s not likely true that most Americans are aware these records can be obtained without a warrant.

The two media references the judge uses to back her claim that cell phone users must be aware the government can obtain location data have nothing to do with location data. Both only deal with the government’s warrantless acquisition of numbers dialled and received. Snowden’s first revelations dealt with the collection of phone records from Verizon. In The Wire, drug dealers used burner phones not because they didn’t want law enforcement to know where they were, but so the numbers dialled and received couldn’t be tracked and their calls couldn’t be wiretapped — the latter of which requires a warrant. Even her statement that police TV shows have long shown officers determining someone’s location by “triangulating signals” is a false equivalent, as that method requires officers on the move attempting to locate one person at a specific time — which is nothing like obtaining weeks or months-long records of their travels.

Judge Pepper finds the Fourth Circuit’s finding baffling, but only because she frames this as a logical leap all cell phone users should have made: that what they share with phone companies is also shared with the government.

This court also is puzzled by the Graham court’s assertion that an individual has a reasonable expectation of privacy in cell tower data because she does not know which cell towers transmit the communications, or where they are located. Cell users know that they need to be in some sort of proximity to a tower in order to have cellular service. Those who drive specific routes each day to work know well the spots where they’re likely to lose service, and where they will regain it. Subway riders know why they lose service when they enter the tunnels. Perhaps cell users do not know, at the moment they discover that they have reception, where the tower is located. But users of cell phones know, at all times, that if their phone is connected to a network, they’re in some kind of proximity to a tower, and that if it is not connected, they likely aren’t.

Again, this says nothing about whether the average person believes their interactions with their service providers are just between these two parties. The government usually isn’t considered to be interchangeable with the third parties people enter into voluntary relationships with. Knowing that you must be connected to a cell tower to make calls or use data is not the same thing as knowing the government can obtain this information with little to no difficulty/paperwork.

In decisions like these, the “reasonable expectation of privacy” is based solely on what the government feels is “reasonable” — far removed from the average citizen’s view of what is “reasonably” private information.

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Comments on “Another Federal Judge Says No Expectation Of Privacy In Cell Site Location Info Because Everyone Knows Phones Generate This Data”

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Anonymous Coward says:

This judge needs a huge bitch slapping, and removal off the bench with prejudice! By this corrupt logic, people should also not be protected by Doctor and Lawyer patient client confidentiality because EVERYONE KNOWS they are about to generate personal and potentially damaging information with their discussions! Therefore they should have NOT EXPECTATION OF PRIVACY!!!!

How I WISHED congress would get off their ass and DISBAND courts like these! Courts MUST live in fear of failing to dispense justice or to protect right with logic as fucked up as this judges!

Dear fellow citizens your infatuation with the 2 party system has wrought this! If you have ever voted for anyone in the 2 parties in the past 20 years, please know that you are part of the problem and responsible for helping make this country this way!

Berenerd (profile) says:

I believe it is REASONABLE for the public to know about stingray cell traps, I believe its reasonable for the public to know about the NSA tracking us without needing to have people risk their lives and imprisonment for showing us. I believe cops need to wear functioning body cameras and dash cams and its reasonable that if they magically never have one working they should be fired for breaking it.

But then again, reasonable is in the eye of the beholder.

Anonymous Coward says:

Re: Re:

Reasonable is not strong enough.

We live in a Democratic Republic that was formed to serve “The People”.

The Government Federal, or Local, must NEVER be allowed to EVER have a single secret from the Citizens… not even for State Security or National Security.

No land of Liberty survives this… never has and never will! We “The People” should eternally consider any government Official ever claiming anything as secret, OTHER than military applications for Military Use Only should be treated as a PUBLIC MENACE & ENEMY OF A FREE STATE!

The moment something is turned on the Citizens it must be immediately declassified and publicly disclosed! There will be more damage to liberty than any other consequence including those of terrorism.

I would much rather deal with the fear of a random thug trying to kill me in the name of their religion than a STANDING ARMY of government officials waving their GUNS in my face during a traffic stop or unexpected HOME INVASION when they mistake my house for a drug cartel.

Anonymous Coward says:

Didn’t the third party doctrine originate in the idea that if you let somebody have any information, that they can voluntarily share it. It has been mutated to the government can demand it, removing the voluntary part, that is removing the warrant requirements that should accompany any demand for information..

Anonymous Coward says:

Re: Re:

yep, the 3rd party doctrine is a fallacy.

the 4th already addresses that private property and information are still protected from search or seizure without a warrant.

the degree to which a party is involved be in 1st, 2nd, 3rd, 4th or whatever is immaterial to the issue at hand.

If the government wants it, it MUST obtain a warrant. Every citizen serving on a Jury must join this fight and eternally rule that anything no matter how incriminating the evidence is, as non-admissible followed by a verdict of non-guilty every time any government organization obtains anything without a warrant.

The price we have paid in liberty & life has already cost far too much for it!

DannyB (profile) says:

The Next Step

Judge says people have no expectation of privacy from their TV taking pictures of them in their home.

Everyone knows that so-called ‘smart’ TVs equipped with cameras for online video chatting have the capability to photograph you in your own home, any time, all the time and upload these images to the mother ship.

Therefore you have no reasonable expectation of privacy.

Should we talk about laptop cameras and microphones?

DannyB (profile) says:

Re: The Next Step

You have no expectation of privacy of where you drive your car to.

Everyone knows that police use license plate readers and maintain detailed and probably permanent records of every time their system has observed your car.

I’m sure quite a history could be learned about you.

And your car might be keeping tabs on how you drive.

I suppose the thing is, SHOULD we be able to have a reasonable expectation of privacy. I believe we should. But judges will believe otherwise, because this privacy invading data is so darn valuable to would be tyrants.

DannyB (profile) says:

Re: Re:

Not having a cell phone should make you automatically suspicious. Only a terrorist would evade suspicion by trying to keep the government from knowing every last tiny detail of their intimate lives.

Similarly, trying to avoid breaking the law is a sure sign that you are trying to look as though you are not a criminal.

For example, if you don’t steal a car, you are obviously trying to mislead and deceive police into thinking you are not a car thief.

Bergman (profile) says:

Re: Re:

It’s pretty terrifying what that circular logic could be applied to as well.

Everybody knows that when you open a debit card account you are assigned a PIN.

Everybody knows that US citizens have social security numbers assigned to them.

Everybody knows lots of things exist that people want to keep secret.

But if everybody knowing that such data exists means the government can access it without a warrant and without stepping on the Constitution, then any need for a warrant for pretty much anything has been abolished.

Anonymous Coward says:

Re: Re: Re: Re:

… why should the police need a warrant to smash your door in and search the place?

They don’t.

Court might —or might not, it depends— exclude the evidence if they just smash in. Presuming they find evidence of anything they want to charge you with. But that’s it.

Can’t sue the cops for doing that. Well, you can, but nine times outta ten it’s just a waste of time and money: the cops will just get the case tossed on qualified immunity. And the tenth time outta ten, the city or the county’s insurance will cover it, and your taxes will go up to cover the increase in insurance rates.

So that’s why the cops don’t need a warrant to just smash your door in and search the place.

That One Guy (profile) says:

And now for the million dollar question:

Is it possible to have a cell-phone that doesn’t provide tracking data, without turning it completely off and/or removing the battery?

No? For a cell-phone to work it must connect to the different towers, providing location data to anyone with access to it, which means that if people want to use a cell phone they must ‘volunteer’ that information, whether they want to or not?

I’d say it’s probably pretty safe to say that almost no-one has ever bought a cell phone thinking ‘This will be a great way for some random schmuck to track my every move’, no, people are buying and using cell phones because that’s how they communicate with others.

The idea that ‘everyone knows so it’s not private information’ is rubbish, and can be easily demonstrated as such by asking if the one making it uses a cell phone, and if they think that anyone should be able to track their movements with it? I’m going to guess that the very same people claiming that there’s no expectation of privacy with regards to cell phone location when it comes to other people would suddenly be up in arms about the ‘horrendous breach in privacy’ regarding someone trying to apply the same standard to them, tracking their movements.

DannyB (profile) says:

Re: And now for the million dollar question:

By driving your car, you make your location available to license plate readers.

Everyone knows this is possible. But shouldn’t you still have an expectation of being able to freely and privately move about unless there is some other reason to suspect you of a crime? Just like the location of your cell phone.

Also, these days, anyone can build a license plate reader using the Open CV library. You might not have the license plate registration data, but it might be surprising the amount of data that a non-police user of such a tool could amass over time. A large database of where license plates were spotted correlated with GPS location.

Maybe Google cars should collect license plate data? Advertisers would love to know that, your plate is frequently parked at your house, but then you also visit certain competitor’s stores that the advertiser could try to entice you away from and into their store. On the surface it seems legit enough. But it would become a privacy nightmare.

OldMugwump (profile) says:

Re: Is it possible to have a cell-phone that doesn't provide tracking data

Yes, it’s possible.

Wrap the phone in aluminum foil.

You can leave it turned on. As long as it’s wrapped in the foil it won’t provide tracking data or be able to receive GPS signals.

Of course the phone isn’t much use that way.

(Whooda thunk the “tinfoil hat” guys would be right about something, eh?)

Anonymous Coward says:

While it is obvious that cell companies require location data, it does not appear obvious that they will save it. It seams simpler to just constantly overwrite the location data with new data, and see no reason, other than the government requiring it, for companies to even have location data from 1 minute ago. There is nothing stopping the police from plugging in their own hard-drive, but most people would not expect that the police can at any time get information on where anyone was for the past several years.

Anonymous Coward says:

Re: Re:

Perhaps the argument could be made that, once data is used for business purposes, specifically, billing, the data is no longer part of a business record between the provider and the subscriber, and hence no longer subject to the SCA. In retaining the data, the provider has transformed the data into proprietary company information, and there is no further business relationship between the provider and the subscriber.

Souvik (profile) says:

Does this work both ways

Using this logic, can a defendant subpoena cell information of cops or other prosecution witnesses in a criminal case? I am making an assumption that they may have been able to do that even today under narrow circumstances, but this ruling would make it easier. Divorce lawyers, PIs should be able to request this data as well from cell phone companies.

Anonymous Coward says:

So according to this judge, she feels this ruling is wrong because everyone knows windows are transparent, the police don’t need a warrant to go peeking into your house at will?

And everyone knows about cell phones and the polices ability to track them because the police have never been anything but completely open when it comes to explaining to the public how Stingrays work. It’s not like the FBI or US marshals have stepped in to take possession of data that was at risk of being exposed by a court order. It’s not as if police departments have hidden behind NDA’s to prevent the courts from learning about Stingrays.

Everything we know about Stingrays and how the police can track cell phones has come about because it’s been leaked by whistleblowers.

I think all cell phones should come with a sticker on the front or back that reads “government approved information collection device”. Once that happens, then I will agree with her ruling.

Anonymous Coward says:

this is what makes the US justice system a total sham! judges cannot even get things the same, some of the time, let alone all of the time! how the hell is someone having their rights violated here, but there, just a foot away, they are not? the only difference in the situation is that one judge rules in one state, another rules in another. totally ludicrous!!

Jason says:

This is something I’ve been wondering for a long time now… Just when did obtaining a search warrant turn in to such an onerous ordeal? How many articles have there been discussing judges rubber-stamping warrants? Are we expected to believe that suddenly getting a warrant is next to impossible and if law enforcement were forced to go to a judge then we’d be in the grip of an epic crime spree in no time?

Or is it that they just don’t want to have to defend their actions in court? To subject their intentions, their probable cause, their evidence to scrutiny?

What is so hard about going to a judge and saying “this is what I’m looking for, this is where it is, this is why I think it’s important”?

The position of law enforcement seems to be that they should be entitled to anything and everything by default, except what the law specifically prohibits. Anybody who’s ever read about the Constitution, let alone read it, ought to be able to tell that it’s supposed to be exactly the opposite.

That One Guy (profile) says:

Re: Re:

Or is it that they just don’t want to have to defend their actions in court? To subject their intentions, their probable cause, their evidence to scrutiny?

Among other reasons, yeah. Read reasonably warrant requirements would prohibit indiscriminate surveillance(no defined target, no defined search), and given how much so many agencies just positively love the idea of ‘grab it all’, getting a warrant would be a little tricky there.

What is so hard about going to a judge and saying “this is what I’m looking for, this is where it is, this is why I think it’s important”?

All of which are very hard conditions to meet when: a) You don’t know what you’re looking for other than ‘you’ll know it when you see it’, b) you don’t know exactly where it is or even have a general idea, and c) given A you don’t know why it might be important because you don’t even know for sure what it is.

Anonymous Coward says:

What’s hilarious about this judge’s ruling is that it will never withstand a challenge in the federal courts. Look for this ruling to be overturned and rather quickly. Simply because it violates the “due process” provision of the U.S. Constitution.

The appellate courts will overturn this decision because her ruling violates due process.

Whatever (profile) says:

Thread 611

No matter how hard you wave your arms or how loud you cry, you need to get over it: The courts are getting it right.

The tower location information is basic to the operation of a cellular phone. The judge is correct that the public doesn’t have to know the minute technical details in order to understand that in some places they have good services, in others they don’t – possibly because they are “too far from the antenna”.

The network has to know where you are to route calls to you. It has to know where you are to send you data. It has to know where you are in order for you to make a call.

The judge is correct. None of this should be a surprise to anyone, especially anyone under about 60 who has lived with cell phones most of their lives.

So my suggestion is stop waving your arms, it just (very slightly) may diminish your cell service.

Anonymous Coward says:

Re: Thread 611

Did you know sending mail requires a return address? The government must know the origin and the final location of the package. The government is not allowed to simply look in your mail without a warrant just because, even though everyone knows that their mail has their home address on it.

A mandatory requirement to use a service isn’t the same as voluntarily giving up information that you expect to be distributed. We have a reasonable expectation of privacy with information we are REQUIRED to give up to access certain services in our society. I voluntarily gave up personal information to my phone company in order to set up an account with them and make use of their services. I did not voluntarily give up my location data, as that’s a requirement to use the service I had already given up information for.

John Fenderson (profile) says:

Re: Re: Re:2 Thread 611

Clearly, if you’re using a service that needs to be able to contact you to work (confirmation of delivery, etc.), then you have to tell them who you are. However, all of that is optional extras, not requirements, so they don’t count.

Whatever is correct. I don’t put a return address on most of the letters and packages I send through the USPS, and it has never once been an issue.

Ninja (profile) says:

Re: Thread F-U

Excuse me but everybody know a ton of stuff and everybody provide a ton of info on different services and that does not mean warrantless access to such data is right or should be granted to law enforcement.

My suggestion is you make your real-time location public and live by your sword then. While at that make the password to your e-mail public since you are willingly giving info to Google or whoever so ti’s only natural the Govt can access it, no?

Grow a brain.

Anonymous Coward says:

Re: Thread 611

Third party doctrine and expectation of privacy are defined to protect people who come across information that they think the police, or others should have and voluntarily give it to them. It was not intended to allow the police to bypass warrant requirement by using it as an excuse to demand information from people or companies.

JMT says:

Re: Thread 611

Thank you Captain Obvious for explaining what everybody already knew. The point is not whether the information exists, it’s whether law enforcement should be able to get it without a warrant.

Why don’t you put your efforts into explaining something useful, like why the public shouldn’t expect this basic legal check procedure to be used before accessing info that most people would prefer to be kept private.

DannyB (profile) says:

Cell Phone location, an investigative technique

Google for the paper: When Organized Crime Applies Academic Results

Here is a link to download the PDF.

This PDF describes how an organized crime ring was busted that was successfully counterfeiting the secure chip credit cards.

While the technique of how the FUN chips were overlaid onto the legitimate chips is fascinating itself, I want to point out part of how the criminals were caught.

See the top of page 3:

Because transactions take place at well-defined geographic locations and at well-defined moments in time, intersecting the IMSIs
6 of SIM cards present near the crime scenes immediately
revealed the perpetrators’ SIM card details. A 25 years old woman was subsequently identified and arrested, while carrying a large number of cigarette packs and scratch games. Such larceny was the fraudsters’ main target, as they resold these goods on the black market.

Investigators quickly put a name on most of the gang members. Four were arrested, including the engineer who created the fake cards. Arrests occurred in the French cities of Ezanville, Auchy-les-Mines and Rouvroy. About 25 stolen cards were seized, as well as specialized software and e 5000 in cash.

So let me see if I got this right.

They can take the time the credit card transaction was made, and correlate it with all cell phones that were physically present in the area. Then repeat this for several different transactions. This helps them quickly narrow down the individuals who are consistently present when the forged card is used.

Interesting technique. Positive result.

But what could a tyrant use that same data for?

Personanongrata says:

I Was Watching TV

Federal court jester Pamela Pepper must have attended the same legal seminars that the recently departed supreme court jester Antonin Scalia (rest his soul) participated.

First court jester Scalia opined that torture and indefinite detention could be justified so long as the government was working under the “ticking time bomb” scenerio. Where did court jester Scalia derive this not-so supreme jurisprudence?

Watching the television show “24”.

Second court jester Pepper ruled that the government using cellular network meta data to track a person 24/7/365 was kosher and did not require a warrant. Where did court jester Pepper glean her pretzel-logic jurisprudence?

Watching the television show “The Wire”.

There we have it a new and shallowly explored area of American jurisprudence ready to be employed by court jesters across the legal spectrum:

I saw it on TV — American Jurisprudence for Boobus-Americanus.

PS Third party doctrine is a place where timid court jesters hide and the Constitution dies.

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