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Fifth Circuit Says No Warrants Needed To Obtain Near-Real Time Cell Site Location Info

from the prospective-records-just-records-apparently dept

The Fifth Circuit Appeals Court has issued a ruling on cell site location data which basically gives the government permission to engage in real-time tracking without a warrant. The acquisition of historical cell site location data is still the source of much judicial dispute. But at the federal appellate level, courts that have handled these cases have decided no warrant is needed. Location records are just another thing law enforcement can have warrantless access to, thanks to the Third Party Doctrine.

Prospective location records, like those obtained in this case, have received less scrutiny. While ostensibly third party records, these allow for "real-time" tracking of individuals using records flowing directly to law enforcement almost as quickly as they're obtained by the cell service provider. A defendant tracked using this poor man's Stingray moved to have the evidence suppressed, arguing the near-real time warrantless "search" violated his Fourth Amendment rights. The court disagreed, finding the momentary landing at the service provider was enough to make them third party records, even if law enforcement was figuratively (or possibly literally) hovering over the cell provider's shoulder as the location records rolled in. From the ruling [PDF]:

There is little distinction between historical and prospective cell site data. As in Historical Cell Site Data, here the government sought “the disclosure of the locations of cell site towers being accessed by [Wallace’s] cell phone” as recorded in future records “captured, stored, recorded and maintained by the phone companies in the ordinary course of business.” “While this information is ‘prospective’ in the sense that the records had not yet been created at the time the order was authorized, it is no different in substance from the historical cell site information . . . at the time it is transmitted to the government.” Booker, 2013 WL 2903562, at *7. The information the government requested was, “in fact, a stored, historical record because it [was] received by the cell phone service provider and stored, if only momentarily, before being forwarded to law enforcement officials.”

So, as it stands here (and in other courts), the government is free to obtain phone records from the past and the future -- and, with a "momentary" landing, location records as they're produced. As the court states here, third party records are third party records, whether or not they've been created yet. Even if the officers were wrong about this, the good faith exception would have allowed them to keep the fruits of their search, according to the court.

It's not a great decision. It allows law enforcement to ask for nearly any cell site location records without stating more than a few "articulable facts." An order could be fashioned to serve as open-ended surveillance, allowing officers to track someone for an indefinite amount of time without ever showing a law enforcement need to do so. It also could serve as cover for Stingray use by providing a parallel set of "real-time" location records.

What the decision doesn't explicitly do is give law enforcement permission to deploy Stingrays without warrants. Stingrays turn the government into the "third party," which isn't an acceptable use of the Third Party Doctrine. But that's another area federal courts really haven't delved into yet -- not because Stingray use is so limited, but because the FBI-enforced secrecy surrounding cell tower spoofers has prevented defendants from mounting many successful challenges. Charges tend to be dismissed if defendants get too close to the truth.

It's a published opinion so it has a little precedential weight. But the opinion spends more time quoting other opinions than breaking much new ground here. Unfortunately, the ground broken here is more victim-blaming, reminding defendants it's their own fault they use cellphones, as if most cellphones users were keenly aware their phones act as tracking devices… and as if it weren't a massive law enforcement boon that all of this info can be had without a warrant, thanks to a doctrine in severe need of a massive update.

Filed Under: 4th amendment, cell site location info, csli, searches, third party doctrine, warrants


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  • identicon
    Anonymous Coward, 31 May 2017 @ 3:30am

    Obtain the future?

    Techdirt creates legal time travel!

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

  • identicon
    concerned citizen, 31 May 2017 @ 3:39am

    The third party doctrine seriously needs some re thinking!

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

    • identicon
      Anonymous Coward, 31 May 2017 @ 5:29am

      Re:

      It has become the lie of the day. Pretending that the ends justify the means also covers the rights abuses that are inherent in such a system.

      I guess it would be perfectly fine for insurance companies to start tracking all government employees to ensure they are actually where they are supposed to be, considering the huge payouts in lawsuits each year.

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

    • identicon
      Anonymous Coward, 31 May 2017 @ 7:12am

      Re:

      it is a DIRECT result of the Businesses are not people and have no rights doctrine.

      this is just another way those pesky leftists fight against themselves in their crusade to force their values upon everyone.

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

    • icon
      That One Guy (profile), 31 May 2017 @ 1:33pm

      Re:

      If by 're thinking' you mean killed in every legal sense of the word, absolutely. The 'third party doctrine' is an abomination that should never have entered the law, and the sooner it dies the better.

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

      • identicon
        Anonymous Coward, 3 Jun 2017 @ 3:47am

        Re: Re:

        Given the choice between killing the 'third party doctrine' or the Fourth Amendment, the courts have made it clear they would much rather kill that pesky Fourth Amendment.

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

  • icon
    DannyB (profile), 31 May 2017 @ 6:15am

    Please define "Near" real time

    I assume that "Near" real time means there must be some delay between when records are made and when law enforcement may obtain them.

    Say, 500 milliseconds? Is that "near" real time enough?

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

  • icon
    Dell Enthusiast (profile), 31 May 2017 @ 6:35am

    Virtual GPS Tracker

    So what is the argument that makes this different than attaching a GPS to someone's car, which I thought SCOTUS had specifically said needs a warrant?

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

    • identicon
      YetAnotherOneGuy, 31 May 2017 @ 7:12am

      Re: Virtual GPS Tracker

      If Verizon put the tracker on your vehicle, they could feed the feds the data within seconds of collecting it.

      That "third-party" bull-dung.

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

      • identicon
        David, 31 May 2017 @ 12:57pm

        Re: Re: Virtual GPS Tracker

        Verizon has no legal authority to put a GPS tracker on the vehicle without a warrant. But if a car rental puts a GPS tracker on the vehicle, we are again in third-party lala land.

        Same with cellphone tower spoofers: the manufacturer does not have the authority to operate them without warrant so they aren't useful for third party doctrine.

        But the proper cellphone tower companies have, so you can just save the Stingray expense and proactively pull all cellphone connection records from all providers. No need to spoof at all. Or to write warrants.

        The U.S. constitution is worth less than the Weimarer Verfassung was in the Third Reich. It's considered completely optional by now.

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

        • identicon
          YetAnotherOneGuy, 31 May 2017 @ 4:21pm

          Re: Re: Re: Virtual GPS Tracker

          Legal or not, Verizon did that, as soon as the Verizon customer gets in their car with their Verizon phone.

          See where I'm getting at?

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

        • identicon
          Anonymous Coward, 3 Jun 2017 @ 3:44am

          Re: Re: Re: Virtual GPS Tracker

          > But if a car rental puts a GPS tracker on the vehicle, we are again in third-party lala land.

          Or one of the trackers car insurance companies are starting to push.

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

  • identicon
    Anonymous Satanist, 31 May 2017 @ 7:23am

    hail hitler

    you've finally got there

    congrats

    the united nazi states of america

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

  • identicon
    Anonymous Satanist, 31 May 2017 @ 7:24am

    p.s.

    thenear real time is the time it takes for them to flip the switch

    you dipshits

    now we gonna here everyone , we know all , see all hear all////

    your all doomed

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

  • identicon
    Anonymous Coward, 31 May 2017 @ 7:58am

    Rental space on police computers?

    If verizon rented 1gb of space on a police officers computer, and had the data streamed to it live would it then be considered that a 3rd party record was created and is just really convenient for the police to look at?

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

  • icon
    Advocate (profile), 31 May 2017 @ 8:06am

    Search? You keep using that word. I do not think it means what you think it means.

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

  • identicon
    Anonymous Coward, 31 May 2017 @ 9:39am

    If you don't want to be tracked, just turn off location services, that will stop GPS tracking.

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

    • icon
      timmaguire42 (profile), 31 May 2017 @ 10:29am

      Re:

      ???

      Apart from the fact that that will turn off most of your apps, you can still be tracked by your cell signal. You need to turn off your phone and start living in the 1980's.

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

      • identicon
        Rekrul, 31 May 2017 @ 1:09pm

        Re: Re:

        Apart from the fact that that will turn off most of your apps, you can still be tracked by your cell signal. You need to turn off your phone and start living in the 1980's.

        Disconnecting from the link would mean instant death!

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

  • icon
    timmaguire42 (profile), 31 May 2017 @ 10:25am

    The third party doctrine was always crap

    It was always unreasonable to say that if anyone finds out, it's a free-for-all, you have no more privacy.

    But in today's world, we have no control over much of our information and cannot function without trusting some information to some organizations. It is more than unreasonable, it is an injustice to say that if you participate in the modern world, you give up nearly all your 4th Amendment rights. That outside your front door (and sometimes inside too), the 4th Amendment has been effectively repealed.

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

  • identicon
    Rekrul, 31 May 2017 @ 1:17pm

    Government Official: From this day forward, all citizens will carry a tracking device on them at all times. It will not only tell us where you are at any given moment, it will also tell us where you've been, allowing us to track your movements over long periods of time. It will also be equipped with a microphone that we can remotely turn on in order to listen to your private communications.

    The People: This is an outrage! It's a complete invasion of our privacy and a violation of the Constitution! The people will never stand for this!

    Government Official: It's called a "smart phone". Not only can you make calls from almost anywhere, it can also connect to the internet, play games, play music...

    The People: GIMME! GIMME!

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

  • identicon
    My_Name_Here, 31 May 2017 @ 9:16pm

    No warrants needed? ...Mmmm, I got another boner.

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

  • identicon
    Anonymous Coward, 1 Jun 2017 @ 4:07am

    "momentary" landings

    With all calls being digital (and buffered) nowadays, don't the conservations themselves "momentarily" land at the service provider? Should we just put the Fourth Amendment out of it's misery already?

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


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