Supreme Court To Consider Fourth Amendment Implications Of Cell Site Location Info

from the finally...-but-will-it-be-a-decision-we-really-want? dept

We've been waiting a long time for the Supreme Court to tackle the Fourth Amendment implications of cell site location info. After putting it off for as long as possible (or so it seems...), the nation's top court is finally ready to handle yesterday's hotly-disputed tech/privacy issue.

The Supreme Court agreed Monday to hear a case next term challenging the use of cellphone records without a warrant.

The case, Carpenter v. United States, centers on Timothy Carpenter, who was convicted of committing a string of armed robberies of Radio Shack and T-Mobile stores in Michigan and Ohio between December 2010 and March 2011.

The government’s evidence at trial included business records from the defendants’ wireless carriers, showing his cellphone was used within a half-mile to two miles of several robberies during the times they occurred.

The nation's top court seemed to have a pretty good handle on the issues raised by today's smartphones in its Riley decision, so there's some hope the Court will engage in a thorough examination of the Third Party Doctrine in light of today's technological realities.

The Supreme Court turned down a chance to reconcile a circuit split back in 2015. Its decision to take it up now might make this a bit easier, seeing as that split no longer exists. The holdout -- the Fourth Circuit Appeals Court -- reversed its original finding to align it with the other circuits in stating there is no expectation of privacy in third party records.

The case the Supreme Court will examine comes from the Sixth Circuit Court and deals with historical cell site location records. Almost coincidentally, the Sixth Circuit Appeals Court released another cell site opinion the same day the Supreme Court announced its review, only this time dealing with real-time gathering of cellphone GPS data. In both cases, the Appeals Court found no Fourth Amendment implications, even though it had to push through its own contradictory assertions to arrive at this conclusion.

Unfortunately, a previous Supreme Court decision on GPS tracking further complicates the issue. The Court's decision on this issue -- which is very much related to warrantless access to cell site location info -- was about three-quarters punt. It suggested long-term warrantless GPS tracking could violate the Fourth Amendment, but did not go so far as to institute a warrant requirement. It's likely it could arrive at a similar non-decision here -- one that would allow the continued exploitation of the Third Party Doctrine by law enforcement, even though the wealth of data handed over to third parties by today's smartphones bears almost no resemblance to the dialing records discussed in 1979's Smith v. Maryland.


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  • identicon
    Anonymous Coward, 6 Jun 2017 @ 12:15pm

    Is it worth someone advancing the argument that the third party doctrine should be asymmetric, in that if a third party volunteers gives evidence to the police it can be used in court, but that if the police want information as it is no longer a voluntary action by the third party? from a third party,, a warrant is required as it is no longer a voluntary action by the third party

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

    • identicon
      Anonymous Coward, 6 Jun 2017 @ 12:30pm

      Re:

      Sounds like a great way to blackmail someone. You still up for that?

      There is a good reason privacy should exist and there is a reason we keep having to fight this battle. People want your private information for a reason because information is power.

      How about I as a business report to the police that you passed by a school too many times for comfort today and had you hauled in for a little "questioning"? How about the police just show up at your place of business too?

      People don't care about innocence, more than enough will believe you are a pedo by accusation only.

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

      • identicon
        Anonymous Coward, 6 Jun 2017 @ 12:50pm

        Re: Re:

        Why is limiting the third party doctrine to mean that volunteered information is admissible, but if the police want to ask, they need a warrant, worse that the current interpretation, that the police can demand information without a warrant?

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

        • identicon
          Anonymous Coward, 6 Jun 2017 @ 1:02pm

          Re: Re: Re:

          There is a massive amount of history, psychology, and economic forces at play.

          History, when government has automatic power to compel businesses to give up data without warrant, think banks and the "Suspicious Activity Report" that has repeatedly robbed innocent people of extreme amounts of cash. The more we allow businesses to "volunteer" information the more we destroy the 4h.

          Psychology, humans that are used to being spied on or believe they are, develop cognitive disorders and children may have stunted emotional growth. This creates huge divisions in humanity and drives everyone apart from each other through distrust. This tends to CREATE war and crime not prevent it.

          Economy, people will avoid any form of "unapproved" economic activity out of fear of being discovered. Hello Mrs. Barbara Bush! We have your dildo on order... of course we notified the police, it is the LAW...

          On that last part, of course it is not actually the law, but more than enough businesses will treat it like such to maintain a "good" relationship with the police. The police are not just certain to abuse this, they will go over the top to remind everyone just how they are their "friends" and that they should be cooperative, what do they have to hide? Should they call in the FBI to audit their business instead?

          The government will use every advantage you give it, and TAKE MORE shortly after!

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

  • identicon
    Anonymous Coward, 6 Jun 2017 @ 12:36pm

    Even if the SCOTUS rules that we have no privacy with cell site location, we'll still have >95% of the country using cell phones and shrugging it off.

    Not using a cellphone would eventually be seen as an indicator of having something to hide.

    Humanity is walking down a truly dark path, and I keep holding out hope for some kind of legislative or judicial reforms to prevent the worst of it from happening. Time and time again I am disappointed by the government's willingness to abuse newfound powers without considering the long term ramifications.

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

    • icon
      Vaultnode (profile), 6 Jun 2017 @ 1:05pm

      Re:

      I'm not sure what you're trying to express here other than generic cynicism.

      Yes, people use cell phones because it's a requirement to participate in much of modern society.

      A change in the legal landscape is the most reliable way of protecting our right to be left alone. We can't keep trying to develop technologies that our own governments keep fighting against as they'll just take over the infrastructure. We *need* policy/legal changes to create lasting societal change.

      As for your cynicism - I suggest a different outlook: Hope springs eternal.

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

      • identicon
        Anonymous Coward, 6 Jun 2017 @ 1:55pm

        disappointed by government

        " I'm not sure what you're trying to express here..."


        ... he's saying he doesn't trust the government -- and he is correct.

        apparently you are unfamiliar with U.S./world history.
        also, there is currently a substantial American political ideology with precisely that viewpoint

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

        • identicon
          Anonymous Coward, 6 Jun 2017 @ 2:04pm

          Re: disappointed by government

          Watch it, a lot of folks here at TD think government should be trusted, and will even flag your comments if you stray too far from the echo chamber.

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

          • icon
            Roger Strong (profile), 6 Jun 2017 @ 2:24pm

            Re: Re: disappointed by government

            Nonsense.

            A lot of folks here at TD simply don't trust anarcho-capitalism any more than they trust government. They believe in checks and balances on capitalism to prevent monopolistic behavior, just like they believe in checks and balances on government to prevent dictatorial behavior.

            Such offensively dishonest misrepresentations about other forum members are why you get flagged.

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

          • icon
            That One Guy (profile), 6 Jun 2017 @ 2:26pm

            Re: Re: disappointed by government

            Nah, people just don't have patience for insults, insults instead of answers, 'I told you so!' repeated constantly, and more insults. You can disagree with what others say, and so long as you do so in a civil fashion you're good.

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

          • identicon
            Chip, 6 Jun 2017 @ 3:18pm

            Re: Re: disappointed by government

            yeah! Anyone who trust s rules or laws to ever solve anything s a governemt sycophant!

            I'll eat all the lead paint chips I want, thank you very much!

            Every Nation eats the paint chips it Deserves!

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

            • identicon
              Anonymous Coward, 6 Jun 2017 @ 4:21pm

              Re: Re: Re: disappointed by government

              Every Nation eats the paint chips it Deserves!

              Closest I've ever come to doing an honest-to-goodness, 100% real spit-take when I read that.

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

          • identicon
            Anonymous Coward, 6 Jun 2017 @ 5:04pm

            Re: Re: disappointed by government

            Or, a lot of people would like to try to improve their government instead of throwing their hands into the air and giving up.

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

          • identicon
            Anonymous Coward, 6 Jun 2017 @ 9:52pm

            Re: Re: disappointed by government

            And your solution is to trust you instead. What do you have to trust? Why, insults upon insults upon insults, of course. We ought to feel honored that you made it your sole purpose to insult everyone else!

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

            • identicon
              Chip, 7 Jun 2017 @ 11:08am

              Re: Re: Re: disappointed by government

              I have written many, many things that are not insults. So many that I can't even think of a single one right now.

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

      • icon
        JoeCool (profile), 6 Jun 2017 @ 2:45pm

        Re: Re:

        Hope springs eternal.

        Hmm - how does that saying go? Hope in one hand, shit in the other. See which fills up first.

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

  • identicon
    Anonymous Coward, 6 Jun 2017 @ 12:56pm

    Sleight of Hand

    Business records should be limited to those items which are used to interact with the customer, or financial information for the company. Everything else should require a warrant.

    The unwarranted searches are a result of laws written by the same government which is taking advantage of those laws.

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

  • icon
    Roger Strong (profile), 6 Jun 2017 @ 1:38pm

    if only
    our tongues
    were tracked
    by gps

    how much
    more paranoid
    we would be
    when we
    speak

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

  • identicon
    Anonymous Coward, 6 Jun 2017 @ 1:40pm

    As a side note...

    "The case, Carpenter v. United States, centers on Timothy Carpenter, who was convicted of committing a string of armed robberies of Radio Shack ..."

    Armed robberies. Radio Shack. That would be like Lebron James slam-dunking over me, walking off the court, taking a shower, getting on a plane, going home to Cleveland, getting a good night's sleep, waking up, having a nice breakfast, getting back on a plane, coming back to the arena, suiting up, and slam-dunking over me AGAIN.

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

  • identicon
    Personanongrata, 6 Jun 2017 @ 2:45pm

    Kangaroo Courts and their Federal/State Court Jesters

    Third party doctrine, qualified immunity doctrine and absolute immunity doctrine do not serve the interests of the citizens of the United States.

    Rather the doctrines serve to both empower the state beyond the Constitution and shield the state from accountability.

    These three doctrine are only a US legal theory that have been foisted into place by judges. They are not a bill that has been passed by congress and signed into law by the executive.

    All three doctrine serve to obviate the need for judges to think by allowing them to hide clearly unconstitutional and criminal behavior on part of agents of the state behind specious sounding doctrine that is not US law.

    How expedient.

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

    • identicon
      Thad, 6 Jun 2017 @ 3:23pm

      Re: Kangaroo Courts and their Federal/State Court Jesters

      These three doctrine are only a US legal theory that have been foisted into place by judges. They are not a bill that has been passed by congress and signed into law by the executive.

      Yeah, but so was desegregation.

      It's true that courts make bad rulings and introduce bad legal theories. But you seem to be suggesting, not that third party doctrine is bad on its merits, but that courts shouldn't be deciding how to interpret the Constitution. Which is kind of their job.

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

  • identicon
    BT, 7 Jun 2017 @ 11:59am

    It would seem the 4th is pretty clear.

    It seems that if they wanted this information, they should get it through a warrant provided to a grand jury. If the suspect was caught with the goods, was caught near the site after it was robbed, or any probable cause, then search away, but simply looking at someones data because they can seems a touch draconian. Sure, it would make law enforcement job easier, but is American freedom about making governments job easier, or making government actually work to achieve a goal?
    The recent precedents made appear err on the side of less rights in favor of government convenience, and to me that is not American at all.

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


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