ACLU Tells Court Long-Term Cell Site Location Tracking Should Require A Warrant

from the people-like-cellphones-much-more-than-they-like-their-government dept

The Supreme Court is going to take a look at the Fourth Amendment implications of warrantless access to historic cell site location information. The outlook for a Fourth Amendment win isn’t particularly hopeful, given that there’s no circuit split to be resolved. The lone holdout was the Fourth Circuit — which originally had problems with the long-term collection of location information — but that court reversed its earlier decision to align with other circuits which have addressed the issue.

That doesn’t mean no one should try! Who knows what the court might decide, especially given the shifting telecommunications landscape. After all, it has managed to budge the 4th a wee bit now and then, even in decisions that were mostly punts or calls for the aggrieved to take it up with their Congressional reps.

The ACLU has filed a brief [PDF] on behalf of the appellants, pointing out what should be obvious: cell site location info isn’t Just Another Third Party Record. It’s a proxy tracking system for law enforcement, which can access this data without warrants. And it’s only getting more precise every day.

Service providers have long retained location information for the start and end of incoming and outgoing calls. Today, those companies increasingly also retain location information related to the transmission of text messages and routine internet connections—which smartphones make virtually constantly to check for new emails, social media messages, weather updates, and other functions. The information recorded can include not only cell site and sector, but also estimated distance of the phone from the nearest cell site. Id. Location precision is also increasing as service providers deploy millions of “small cells,” “which cover a very specific area, such as one floor of a building, the waiting room of an office, or a single home.” United States v. Graham, 824 F.3d 421, 448 (4th Cir. 2016) (en banc) (Wynn, J., dissenting in part and concurring in the judgment) (citation omitted); see also Hoy, supra, at 69-70. All told, a typical smartphone connects to cell towers hundreds of times a day, generating a densely pixelated matrix of data points documenting the user’s movements. The volume and precision of that data will grow steadily in coming years, generating ever more granular locational information.

The ACLU notes Congress itself has granted consumer protections for CSLI, giving customers control over who has access to this data. Unfortunately, multiple courts have ruled that, since cell providers have access to the info and customers are at least somewhat aware their phones must connect to towers to provide service, this information can be obtained by the government with only a subpoena. (And, obviously, without the customer’s consent.) In some rulings, this has been extended to real-time location tracking, with law enforcement officers basically shoulder-surfing telco computers for pings.

The brief draws a connection between virtual location tracking with CSLI and the Supreme Court’s Jones decision, which dealt with long-term tracking of individuals with concealed GPS tracking devices. That decision didn’t quite establish a warrant requirement, but did suggest warrantless long-term location tracking raised a number of Fourth Amendment issues.

Allowing law enforcement agencies to use service providers as tracking devices is a problem. It shouldn’t really make a difference whether it’s long-term or short-term, but the tremendous amount of location data automatically gathered can provide an extremely in-depth examination of someone’s life, all through the magic of third-party records.

Worse, long-term tracking through CSLI exposes even more of a person’s movements to the government. Phones go places cars don’t. A suspect could “opt out” of GPS data collection by walking, using public transportation, or riding in vehicles without tracking devices. But people’s phones go everywhere they go. Having this wealth of information on tap is a boon for law enforcement. Obtaining a warrant isn’t some sort of insurmountable obstacle. The world has changed incredibly since 1979, which is when the Supreme Court created the Third Party Doctrine out of thin air. If nothing else, this case should give it the opportunity to take another look at a decision headed into its fourth decade and see if it still remains relevant in a world where almost every citizen carries around a proxy government tracking device wherever they go.

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Comments on “ACLU Tells Court Long-Term Cell Site Location Tracking Should Require A Warrant”

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Zgaidin (profile) says:

I don't get it

I do not understand both law enforcement and the courts’ reticence to implement warrant requirements for things. Any adversarial portion of a warrant happens well after the fact, once charges are brought, and getting the warrant in the first place seems like a formality these days. Exigent circumstances can bypass a warrant requirement. I can envision such an instance with CSLI, such as a kidnapping victim doesn’t know where they’re being held but manages to get a hold of a cell phone briefly and calls 911. Great! Call the provider, explain the situation, and tell them you need the CSLI for that phone.

The only possible explanations I can think of for this attitude are laziness (they don’t want to fill out the forms and affidavits, go to the judge, etc.) or malfeasance (they’re using 3rd party doctrine to get info on people they have no business getting info on, like spouses or other romantic interests, personal enemies, etc.) Neither looks good, but I could believe either from police (or both!), but the courts alignment on this issue baffles me.

Nancy Parker says:

Only court allows listening to telephone conversations of any person, and only in cases where it helps to prevent a crime or to find out the truth during the investigation of a criminal case, if it is impossible to obtain information in other ways.

It would seems that the solution can be only this: have one SIM card for the smartphone, which you will use as public, and for all the secret conversations buy another simple telephone, with the number which does not appear anywhere. But this is not an option, as there are methods by which you can identify all telephone sets within a radius of your smartphone.

Moreover, even if smartphone is turned off and just lies next to the desk, it can work as a passive microphone and be guided remotely to transfer the recording of your conversations. To avoid this, you should either not carry your phone to important meetings, the contents of which you want to keep secret, or at least remove the battery from it.

You can also use special equipment, which excludes the transfer of any data from your phone. This is, for example, a case made of special material that can block the transfer of virtually all waves. Such equipment can be purchased openly, but it costs not cheaply…

Anonymous Coward says:

Re: Re:

It would seems that the solution can be only this: have one SIM card for the smartphone, which you will use as public, and for all the secret conversations buy another simple telephone, with the number which does not appear anywhere. But this is not an option, as there are methods by which you can identify all telephone sets within a radius of your smartphone.

It also came up in the Snowden docs that the NSA etc. have programs to specifically detect "secret" phones like this. E.g., if a phone always appears shortly after your phone turns off, in a similar area, they might flag that. Or if two phones always travel together.

MyNameHere (profile) says:

I think the problem you will have here is that location information is just a business record, required by the cell companies to justify their billing. As such, they are required to retain the records for however long the law requires (7 years?). It’s not optional information, it’s absolutely required for them to do their business, an integral and basic function of a cellular network.

The third party doctrine is pretty clear, and appears to apply very clearly here.

Legally, it’s a simple question. If today’s information is had without a warrant, and yesterdays as well, and last months, and Monday a year ago, so at what point does the law specific that you must stop? The answer is “it does not”, except that you cannot ask for records beyond the record rentention laws (companies won’t keep them).

If cell tower / location information was NOT an integral part of offering a cellular network, the ACLU might be right. However, the information is given willingly, as part of the operation of the device. It’s part and parcel of a cell phone network. You want a cell phone, the cell company has to keep records of where your phone is (generally) to offer you proper service and to bill you appropriately.

So all they are left with is to argue the third party doctrine, which seems to be holding up well after 50 years. Nobody is forcing a cell phone into anyone’s hand. You have to sign a contract to obtain service, which generally includes verbage in regards to location / cell information. There are no surprises here.

Seems like the ACLU is arguing a very difficult point, legally, with pretty much everything pointing against them.

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