Cell Phones Need A Warrant, But Cell Site Location Info Doesn't? Appellants Challenge Government's Assertions

from the it's-time-to-start-disassembling-the-Third-Party-Doctrine dept

The Supreme Court's recent finding that warrantless cell phone searches are unconstitutional is already generating some pretty interesting arguments in ongoing cases. The government obviously wishes to mitigate the "damage" done by this decision by still doggedly pursuing data through warrantless methods.

In this particular case, the government is arguing that it has every right to access cell site location information (CSLI) without a warrant, claiming that the Riley decision solely pertains to the contents of cell phones. Obtaining CSLI without a warrant is still Constitutionally-dubious, however. One state court and a federal court have held that this information should only be obtained with a warrant. In the prior case, it was found that the state's Constitution provided more protection than the US Constitution and in the latter, the finding was very narrowly tailored to the case at hand, making it very difficult to apply to others cases, even under the same jurisdiction.

While the government makes the usual claims about third party data and warrant requirements being an undue burden, the appellant's reply takes those arguments apart.

The government is quite candid in its brief that it wishes to use cell phone location data to conduct dragnet surveillance without any individualized suspicion, or even a belief that a crime has occurred. It claims that CSLI is a simple building block at the beginning of an investigation that is the equivalent of chatting with bystanders. Riley refused to countenance this warrantless practice when it explained that location data qualifies as one of the “privacies of life” that the Fourth Amendment protects.
The appellant's reply further disassembles the government's assertion that grabbing cell location info is like "chatting with bystanders" in order to help "build an investigation." In one footnote, it asks why the government feels it shouldn't need a warrant for the cell location data when it obviously found a warrant necessary elsewhere, belying its "building an investigation" claim.
Here, this argument is demonstrably false. Appellants had already been arrested and indicted–and multiple search warrants had already been issued–before the government first sought the 18 U.S.C. § 2703(d) orders. In fact, some of the warrants were to search the cell phones.
In another, it attacks the ridiculousness of the Third Party Doctrine, which the government claims gives it the "right" to grab records without warrants and, in essence, turns the cell provider into nothing more than an impartial witness/bystander.
Contrary to the government’s assertion, nobody at Sprint witnessed Appellants’ movements, let alone any criminal activity. The government required Sprint to record his movements, using Sprint as the custodian. The technology itself needs only ephemeral and anonymous detection of location. Using this artefact of the technology as a retrospective homing beacon does not transform Sprint into a witness. Without the government’s action, no person would have ever known or seen the Appellants’ every move over the course of seven months.
If there's anything the court should pay particular attention to, it's this footnote. The government has successfully argued for years that so-called "business records" carry no expectation of privacy while hiding the fact that many of these records are maintained to meet government regulations. The government compels the production of records and then claims it should have broad, warrantless access to them because cell phone owners "voluntarily" generated these by using their phones. It ignores the fact that there's no way for customers to opt out of these collections, short of not using a phone. This ties into the Riley decision, in which the Supreme Court noted that having a cell phone isn't some sort of luxury enjoyed by a small percentage of the population but a necessity of modern life.




Reader Comments (rss)

(Flattened / Threaded)

  1.  
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    That One Guy (profile), Aug 12th, 2014 @ 4:10pm

    Not that tricky

    This really shouldn't be that difficult for the judge to figure out.

    Would attaching a tracking device of some sort, either to someone's vehicle or person, to track them require a warrant? Yes. Given tracking someone via their cellphone is for all intents and purposes identical, it too should require a warrant to be legal.

     

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  2.  
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    Anonymous Coward, Aug 12th, 2014 @ 4:20pm

    Third party data, is only third party data ,if a third party is paying for that data , Correct ? or am I wrong?.

     

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  3.  
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    AnonCow, Aug 12th, 2014 @ 4:29pm

    Wouldn't warrantless access to CLSI data also imply that any other third-party aggregated data source would also be accessible to police? For example, if an apartment building had a surveillance system, wouldn't that also be available to police without a warrant since it is third-party data?

     

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  4.  
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    Anonymous Coward, Aug 12th, 2014 @ 4:38pm

    Cell phones are not people...

    I never did understand the notion that if someone's cell phone was in a given area so were they?

    I guess this goes along with the assumption that everyone carries their own personal cell phone.

    My phone is often times in my wife's car (even if she's not driving it) - because i'm not one of those technology-addicted people who has to have his phone with him at all times. In fact, I think my wife has my phone more often than I do.

     

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  5.  
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    Anonymous Coward, Aug 12th, 2014 @ 5:09pm

    A bit trickier

    Would attaching a tracking device of some sort, either to someone's vehicle or person, to track them require a warrant? Yes. Given tracking someone via their cellphone is for all intents and purposes identical, it too should require a warrant to be legal.

    Not identical. If you discover a tracking device on/in your vehicle or on your person, you can remove it without making the vehicle/person non-operational.

    Unless you're being tracked through your pacemaker, perhaps...

     

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  6.  
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    AnonCow, Aug 12th, 2014 @ 5:30pm

    Couldn't you also make a case for credit card and bank information as "third-party data" if you just used the location of the transaction, not any details about the transaction? For example, Visa provides the names of everyone that conducted a transaction within 100 yards of a crime scene within a two hour window of time.

    I could well imagine the government arguing that since they don't get any actual details of the financial transaction itself, just proximity data (which wouldn't have an expectation of privacy anyway since you were in a store), it doesn't violate any Constitutional protections.

    Slippery little slope you've got there...

     

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  7.  
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    Anonymous Coward, Aug 12th, 2014 @ 5:50pm

    Re:

    I see no reason why they could not do this now. Heck, maybe they do. How would you know?

     

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  8.  
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    CanadianByChoice (profile), Aug 12th, 2014 @ 6:16pm

    "equivalent of chatting with bystanders"?

    Not quite. A bystander can choose to not tell you anything.

     

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  9.  
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    Bergman (profile), Aug 12th, 2014 @ 9:25pm

    There's another thing you voluntarily choose to generate.

     

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  10.  
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    Bergman (profile), Aug 12th, 2014 @ 9:26pm

    There's another thing you voluntarily choose to generate.

    Specifically, those are the papers and effects protected by the fourth amendment. If voluntarily choosing to create something voids your fourth amendment protections, then nothing is protected.

     

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  11.  
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    Whatever (profile), Aug 12th, 2014 @ 9:34pm

    Re: Not that tricky

    Nowhere near that simple. If the tracking device is installed by law enforcement (say a GPS tracker) then yes, a warrant is needed base on current rulings.

    The phone, however, is something that (a) you willingly and knowingly carry with you, and (b) operates by broadcasting a signal over the public airwaves, and (c) that data is collected by the phone company, generally considered a third party. In fact, that data (at least the most current data) is a requirement to make the cellular network operate. If they don't know where your phone is, it is not easy for them to ring you!

    So compared to a police installed GPS device, there are plenty of differences.

     

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  12.  
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    Anonymous Coward, Aug 13th, 2014 @ 4:19am

    Re: Re: Not that tricky

    The network only needs your current location, and then only to the precision of a single cell - it needs far less information than law enforcement are collecting, and does not need to keep it except as mandated by law.

    Not needing a warrant for your current location based purely on cell tower signal strength would be reasonable (although since you also give the company the list of everyone you call as a matter of technical necessity, the two should be treated the same), but that's rather different to getting the precise GPS location or a log of past locations, neither of which the cell company need or have any legitimate operational reason to store.

     

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  13.  
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    Anonymous Coward, Aug 13th, 2014 @ 4:51am

    Govt + surveill vs Law Enforcement

    Back in the day, people actually liked law enforcement (LE). They were trusted and respected. Thus, when bad stuff happened people would volunteer information which assisted LE in building a case for prosecution. These days society seems much less trusting in LE for very good reason (general abuse of power). So, how does LE get the useful information? Nobody wants to talk to them. Thus, Govt surveillance, which screws the public (general suspicion). Not a nice way to live.

     

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  14.  
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    John Fenderson (profile), Aug 13th, 2014 @ 10:34am

    Re: Re:

    I think the safe assumption is that they suck in all data that they can make even a tenuous legal case for, and most of the data that they can't.

     

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  15.  
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    John Fenderson (profile), Aug 13th, 2014 @ 10:38am

    Re: Govt + surveill vs Law Enforcement

    Yup. I remember those days before the police lost their collective mind.

    Of course, such days never existed for everyone. They pretty much only existed for the middle-class white community for most of 20th century history. As a friend of mine once pointed out (quite correctly) the real difference between now and the "good old days" is that middle class white people are being treated more like poor and minority people have been treated for a very, very long time.

     

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  16.  
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    Anon, Aug 13th, 2014 @ 12:05pm

    >"The government compels the production of records and then claims it should have broad, warrantless access to them because cell phone owners "voluntarily" generated these by using their phones."

    Actually - The government compels the *retention* of records - which is the key problem here.

    It's not much different than the government coming in and demanding to see a hotel's guest registry; except it's as if the government demanded too that the hotel collect official ID's and they keep the registries for a year or more.

    Surely there' a court case already on whether the government needs a warrant to read a hotel registry? But then, AFAIK hotels are not legally mandated to keep reliable accurate information for extended periods.

     

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  17.  
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    John Fenderson (profile), Aug 13th, 2014 @ 12:32pm

    Re:

    "Surely there' a court case already on whether the government needs a warrant to read a hotel registry? But then, AFAIK hotels are not legally mandated to keep reliable accurate information for extended periods."

    I got curious about this and did some searching. The applicable laws are state laws and so vary according to where we're talking about. However, data retention is included in most of the ones I've seen. Here's Massachusetts' law -- most of the others don't seem too different from this:

    Until the entry of such name and the record of the room has been made, such person shall not be allowed to occupy privately any room upon the licensed premises. Such register shall be retained by the holder of the license for a period of at least one year after the date of the last entry therein, and shall be open to the inspection of the licensing authorities, their agents and the police.

     

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  18.  
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    M. Alan Thomas II (profile), Aug 13th, 2014 @ 8:56pm

    One of the old banking cases that the third-party doctrine is built on held that, because there was a law compelling both mandatory record-keeping and disclosure upon request, you were could not reasonably expect that the contents of the records were or would remain private. In short, if you know that the government is spying on you, you have no reasonable expectation of privacy. A cute little bit of circular reasoning that would justify anything if you tried hard enough.

     

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  19.  
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    John Fenderson (profile), Aug 14th, 2014 @ 8:28am

    Re:

    Exactly. This is my entire problem with the "reasonable expectation of privacy" standard. As a ferinstance, now that we know the NSA is engaged in wholesale spying on us all, there can be no reasonable expectation of privacy.

    A standard that falls as soon as it is violated is a worthless standard.

     

    reply to this | link to this | view in thread ]


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