Federal Judge Says Third Party Doctrine A Perfectly 'Good Law;' No Warrants Needed To Obtain Cell Location Records

from the multiple-government-agencies-agree! dept

Back in December, a Connecticut state court ruled that tracking people in near-real time with cell site location info required the use of a warrant. Three months later, a Connecticut federal court has ruled law enforcement can obtain CSLI without a warrant, in bulk and for extended periods of time. While the opinion doesn't address the use of subpoenas and CSLI as a makeshift Stingray (for real-time tracking), it does come down firmly on the side of the government's interpretation of the Third Party Doctrine.

Here, the Government acquired information about defendant that was in the possession of a third-party—Verizon—and that the acquisition of this information did not involve any trespass upon defendant’s body, house, papers, or effects and did not involve any interference at all with defendant’s possessory interests in any of his property.
The opinion leans heavily on every decision finding that there's no expectation of privacy in records held by third parties. The court makes the slightest nod to the current discussion of expectations of privacy in a world where the devices most people carry generate a wealth of information and data nearly non-stop. But it does so with wording that shows it has no interest in engaging in this discussion.
The third-party doctrine has been subject to tsunamis of criticism. But it doubtlessly remains good law today.
And, like other decisions along the same lines, the court echoes the government's assertions that every cell phone user is perfectly aware their phones are sending all sorts of information to the nearest cell tower.
Defendant also contends that cell-site location information is not voluntarily conveyed to one’s cellular telephone company in the same sense or manner that one voluntarily conveys financial information to a bank as in Miller or telephone numbers to a telephone company as in Smith. Although this rationale has convinced some courts to conclude that the third-party doctrine does not apply, I do not agree. Every cell phone customer knows that his or her information is relayed wirelessly to nearby cell phone towers. It can come as no surprise that one’s cell phone company keeps records of cell towers that are accessed by and necessary to the provision and connection of every customer’s cell phone service. This is no different than every customer’s awareness that the bank keeps records of one’s checks and transactions (Miller) and that the telephone company keeps records of the telephone numbers that one calls (Smith).
The court also points out there's no bright line determination as to how much is too much when it comes to acquiring location records. (The defendant raised the argument that 22 days of CSLI was excessive without the use of a warrant.) As the court logically points out, any determination on an acceptable time frame would be completely arbitrary and mostly useless.

As for the Third Party Doctrine's possible inapplicability in today's world, the court says that's up to Congress to fix, not the courts.
All that said, the critics of the third-party doctrine have strong arguments it does not adequately protect privacy—that it imposes an unacceptable and Orwellian cost of forfeiture of any claim of privacy to what we voluntarily disclose even in confidence to one another. The critics persuasively argue that the doctrine is especially problematic in our ever expanding technology-dependent and technology-intrusive society. But these are arguments for policymakers in Congress to consider, if Congress wishes to enact protections that exceed the Fourth Amendment baseline.

[...]

In the meantime, the obligation remains for the lower courts to follow the law and not to impose—no matter how techno-intellectually fashionable—an “everything is different because it’s an iPhone” theory of the Fourth Amendment.
The issue of real-time warrantless tracking remains unaddressed as this case only dealt with historic data. The question of the Third Party Doctrine is punted back to Congress -- which has proven mostly uninterested in updating outdated laws to better conform to today's reality. Even with a boot up the ladder to a higher court is unlikely to result in a re-reading of the Third Party Doctrine. The Supreme Court has only determined that long-term location tracking might need a warrant. As it stands now, the acquisition of third-party records violates no one's privacy, legally-speaking.


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  • icon
    Vidiot (profile), 29 Feb 2016 @ 12:50pm

    Works for me

    So... information someone feels should remain private -- secrets, let's call them -- can't be disclosed to me; but if they're in the hands of a third party -- a Mr. Snowden, perhaps -- that's okay.

    You said it, Your Honor: "... it doubtlessly remains good law today."

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

  • identicon
    Anonymous Blowhard, 29 Feb 2016 @ 2:06pm

    So Nothing is Private

    You can't expect your medical or prescription records to be private either and expecting our corrupt congress to do any real work is insane.

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

  • identicon
    Anonymous Coward, 29 Feb 2016 @ 2:25pm

    But these are arguments for policymakers in Congress to consider, if Congress wishes to enact protections that exceed the Fourth Amendment baseline.

    We just made the problem, it's not our job to fix it.

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

  • icon
    l8gravely (profile), 29 Feb 2016 @ 2:27pm

    All someone needs to do is start publishing realtime logs of where Politicians phone(s) have been going over the past 30 days for stuff like this to get addressed.

    Sorta like how they passed the law about not being able to publish their video tape rental histories either, once they realized that just anyone could see what tape(s) they had been renting.

    Once Politicians are the target of something like this, it's amazing how quickly they will work to restrict it.

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

    • identicon
      Anonymous Coward, 29 Feb 2016 @ 2:47pm

      Re:

      That and keep tabs on all of the police during their working hours as well. Since they are being paid for doing their jobs at the time, I'm sure they will have no problem with people having a record of exactly where they were at any given time for that period...

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

  • icon
    Mayson Lancaster (profile), 29 Feb 2016 @ 2:36pm

    Brooklyn case iPhone win for Apple

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

    • identicon
      Anonymous Coward, 29 Feb 2016 @ 2:58pm

      Re: Brooklyn case iPhone win for Apple

      Thanks for the link, btw.

      I caught the bare news from AP, but hadn't seen the pdf of the decision yet. Reading it now.

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

  • identicon
    Anonymous Coward, 29 Feb 2016 @ 2:37pm

    Is it within the realm of reasonableness for the Supreme Court to overturn the Third Party Doctrine once the NSA spying cases that are, in part, contesting its constitutionality make it to the Supreme Court?

    I really want some hope left for the future. It seems any such hope will rely on the Third Party doctrine being overturned.

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

    • identicon
      Anonymous Coward, 29 Feb 2016 @ 8:21pm

      Re:

      I guess it depends on what you term "reasonable."

      Is it possible? Yes. Is it likely? Not really. The Supreme Court very rarely overturns its own decisions, and it generally requires a complete change in the political landscape before they do so. The textbook example is "separate but equal," which took 50 years and the civil rights movement to modify.

      It's been about 60 years now since the third party doctrine was established, but there's little support (social or political) for altering it.

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

      • identicon
        Anonymous Coward, 1 Mar 2016 @ 5:52am

        Re: Re:

        I see. Is there no precedent of the Supreme Court overturning a precedent without much political or social energy behind it, simply due to how incompatible said precedent is with the Constitution given present day realities?

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

  • identicon
    Chris Brand, 29 Feb 2016 @ 3:40pm

    historical location info ?

    I can certainly see the argument that "of course your cell provider needs to know what cell tower you're nearest to" but I'm not convinced that it's common sense that they would be storing what cell tower I *was* connected to at any time in the past. They don't have any technical need for the information, and storing it obviously has some amount of cost. So I should know that they keep it because ... big companies like to gather as much info on their users as possible ? or because the government probably asks them to ?

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

    • icon
      Whatever (profile), 29 Feb 2016 @ 5:06pm

      Re: historical location info ?

      For billing and usage purposes. they would retain the records of your use for the same amount of time that they are required by law to retain your billing. Otherwise, the amounts on your bill would be unjustifiable, and perhaps even run into problems with audits and such.

      That would mean upwards to 7 or 8 years. That's a lot of data.

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

      • identicon
        Anonymous Coward, 29 Feb 2016 @ 8:52pm

        Re: Re: historical location info ?

        Because one is charged by the mile not the minute ... oh wait - no yer not.

        I doubt you will anything on your bill referring to a charge based upon location or distance traversed. Perhaps one city is more expensive to talk to than another? I don't think it appears on your bill as a line item.

        Your argument is flaccid.

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

        • identicon
          Anonymous Coward, 1 Mar 2016 @ 3:43am

          Re: Re: Re: historical location info ?

          not only that, just TRY to get YOUR 'OWN' phone records from 'your' phone company...
          good luck, citizen...

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

        • icon
          Whatever (profile), 1 Mar 2016 @ 4:06pm

          Re: Re: Re: historical location info ?

          You are kidding, right? The phone company keeps track for billing purposes. If you get a detailed billing, it will tell you where an income or outgoing call was made, usually down to city or area name (they won't give an address or similar). They have to have it to prove usage if someone says "I didn't make those calls" or "I was never in Everton that week!". While most of them don't do it, it could potentially be used to spot cloned phones (if the phone appears in more than one place at a time, or the distances between two calls are much greater than the potential travelling speed).

          They have to justify where the call was made to show it was on their network, where, and when. It's basic stuff.

          Your argument about my point is beyind flaccid. It's almost atrophied.

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

          • identicon
            Anonymous Coward, 1 Mar 2016 @ 4:53pm

            Re: Re: Re: Re: historical location info ?

            You claim they have and need these detailed records for billing purposes ... would that be for billing the government .. you know for providing the information?

            I have never seen such detail on a bill, have you? You ever attempt to get your own records? I call bullshit.

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

    • identicon
      Anonymous Coward, 29 Feb 2016 @ 5:13pm

      Re: historical location info ?

      All the major cell phone companies sell location data to advertisers, and have for years.

      Here's just the latest example.

      http://www.nytimes.com/2016/02/29/business/media/see-that-billboard-it-may-see-you-too.html? _r=1

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

      • identicon
        Anonymous Coward, 29 Feb 2016 @ 8:54pm

        Re: Re: historical location info ?

        But they sell your data in order to provide you with better service at a lower price .... LOL - not.

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

  • icon
    That One Guy (profile), 29 Feb 2016 @ 9:39pm

    Voluntary vs 'Voluntary'

    A major flaw in the Third Part Doctrine as I see it is that a lot of the 'voluntarily' handed over personal information is anything but. Someone using a cell phone has no choice but to hand over locational data if they want to be able to use a cell phone.

    Along the same vein, there are cars that include GPS tracking related to various services, and it wouldn't surprise me if some of those are built in such that you cannot choose to turn it off. According to the TPD then anyone using those makes of vehicles has 'voluntarily' handed over their location data when driving, even though they had no choice in the matter other than 'buy a different car'.

    If you go to the doctor you have to provide personal data.

    If you want to open up a bank account you have to provide personal data.

    If you want to use the internet you have to provide the ISP personal data, which can then be linked to your activities online, which is also data that you have to provide for the internet to work.

    A whole lot of the data that they are arguing is 'voluntarily' handed over is data that the person has no choice but to provide so long as they wish to be able to use the service/product.

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

    • identicon
      Anonymous Coward, 1 Mar 2016 @ 6:47am

      Re: Voluntary vs 'Voluntary'

      "you cannot choose to turn it off"

      It would be a shame it if were to stop functioning for some reason.

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

    • icon
      nasch (profile), 2 Mar 2016 @ 6:20am

      Re: Voluntary vs 'Voluntary'

      A whole lot of the data that they are arguing is 'voluntarily' handed over is data that the person has no choice but to provide so long as they wish to be able to use the service/product.

      They seem to be taking the strictest meaning, because you could choose not to use a cell phone, go to the doctor, or have a bank account. That interpretation leads to a very problematic state of law though.

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

  • identicon
    AJ, 1 Mar 2016 @ 3:49am

    I love how these people are so interested in where my phone is. If I was a crook, I would indeed have a smart phone... and a flip top prepaid.. one of which would go on random bus trips when I was working. Remember, all you need is reasonable doubt...

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

  • identicon
    Anonymous Coward, 1 Mar 2016 @ 5:50am

    You have no rights, now please continue to do as you are told, since we have no way to enforce this upon you other than through the use of force.

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

  • icon
    JonC (profile), 1 Mar 2016 @ 6:35am

    This just sickens and disgusts me. The default should be that the government has the right to access no information at all. The warrant process IS the exception. The founding fathers must be spinning in their graves.

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

  • icon
    Almost Anonymous (profile), 1 Mar 2016 @ 7:41am

    Stupid controversy

    I'm so sick of this stupid controversy. People, it says right on the box of your phone that your location can and will be tracked! You agreed to being tracked when you opened the box!

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

  • identicon
    Anonymous Coward, 1 Mar 2016 @ 1:21pm

    We all know that our cell phone provides the location of where we are. That is a true statement, as we have all see the movie where they ditch the cell phone when running from the bad guys or don't want to be tracked. No warrant means that the location of your cell phone is public record and does not need a warrant. Therefore I should be able to request the location records "without a warrant" of the stalker that is stalking me, to which I have a court ordered restraining order against my stalker. And I should be able to obtain the records, to find out if he has broken the restraining order. BUT,,, For some reason the cell company nor the police will help me locate and track the "stalker". They tell me that I would need a warrant to obtain that information. The story is not that big of a deal, as we all know the govt twists the laws in their favor.

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

  • icon
    John Fenderson (profile), 1 Mar 2016 @ 3:08pm

    The nut of the issue

    The Judge says "if Congress wishes to enact protections that exceed the Fourth Amendment baseline."

    There's the problem. My plain reading of the fourth amendment makes it very clear to me that the "third party doctrine" violates the fourth amendment baseline.

    It would be one thing if the doctrine just meant that someone who knows something about me is free to tell others. But the government insists that what it really means is that the government can legally compel those someones to give up that information in situations where could not legally compel me.

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

  • identicon
    Stosh, 1 Mar 2016 @ 6:57pm

    "The third-party doctrine has been subject to tsunamis of criticism. But it doubtlessly remains good law today."

    True judge, it remains law, good law is a stretch....

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


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