New York State Appellate Court Says Cell Site Location Records Have No Expectation Of Privacy

from the may-our-children-look-back-at-these-decisions-and-laugh-over-their-avocado-toast dept

The Supreme Court will deliver its ruling on the issue of cell site location info later this year, possibly changing the contours of the Third Party Doctrine for the first time since its erection out of thin air more than four decades ago. Until then, a patchwork of decisions has been handed down by state courts, some finding state law provides more protection for cell phone users than the US Constitution. At the federal level, however, years of precedent has resulted in a mostly-unified front by appellate courts. According to their decisions, cell site location info is a third-party record, undeserving of Fourth Amendment protections.

One of New York State's appellate courts has sided with the federal level. According to its recent decision, there are no privacy expectations in CSLI collected and stored by cell phone providers.

[W]e conclude that the acquisition of that information was not a search requiring a warrant under either the federal or state constitution. As the People point out, this case involves only historical cell site location information, contained in the business records of defendant's service provider, which placed his phone within a certain cell site "sector" at the time he used the phone to make calls, send text messages, or receive calls or messages.

Under these circumstances, we conclude that the acquisition of the cell site location information was not a search under the Fourth Amendment to the federal constitution because defendant's use of the phone constituted a voluntary disclosure of his general location to his service provider, and a person does not have a reasonable expectation of privacy in information voluntarily disclosed to third parties…

The court goes on to declare that even if it had felt like suppressing the evidence and extending privacy protections to CSLI, it wouldn't have helped the defendant.

As a final matter, we agree with the People that any error in the court's refusal to suppress defendant's cell site location information is harmless. The evidence of defendant's identity as a participant in the crime is overwhelming, and there is no reasonable possibility that the verdict would have been different if the location information had been suppressed…

This decision will stand even if the Supreme Court upends 40+ years of Third Party Doctrine rulings. Decisions like these are rarely retroactively applied. Even if Carpenter wins his Supreme Court case, it's likely the lower court will allow the evidence to remain in play, pointing out officers were reasonable to rely on precedential decisions finding no Fourth Amendment protections for third party records. The same goes for the defendant here. Post-decision alterations to the contours of the Constitution rarely help those whose rights have been determined to be violated after the fact.


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  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 5 Jan 2018 @ 8:29pm

    What the hell does the "dept" mean?

    "may-our-children-look-back-at-these-decisions-and-laugh-over-their-avocado-toast"?

    "Avocado toast"? Is that "a thing" you rich weenies have your cook fix? And why laughing over this? -- Does it mean anything at all? It certainly doesn't communicate a thought.

    Why did you put it up if didn't want notice?

    Sheesh.

    Anyhoo: Umm... SURPRISE! If you thought were even slight chance otherwise.

    But for some reason you don't mind Google or the evil Verizon and every other corporation having this and all other data about you.

    Weird.

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

    • identicon
      Anonymous Coward, 5 Jan 2018 @ 9:48pm

      Re: What the hell does the "dept" mean?

      And we can expect your personal details when, NSA fanboy?

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

    • identicon
      Anonymous Coward, 6 Jan 2018 @ 2:46am

      Re: What the hell does the "dept" mean?

      First of all, google isn't going to take all my location data and try to arrest or imprison me based on loose assumptions of my intentions based on innocuous activity.

      Second of all, I can choose not to use google if I take issue with how they collect or use my data.

      Third of all, nobody said people don't mind how Verizon or other such companies use their data, but more often than not they have literally no choice besides not having a phone. People have and still do take issue with and argue about the legality of how companies like verizon collect and use their data.

      Fourth, none of the corporations you could mention have a requirement under the law to respect your privacy while parsing through your data, but law enforcement does and is expected is expected to take an individuals privacy in mind, because nobody authorized them to access or collect that data, unlike with 'every other corporation'. When I use google, when I use Verizon, I enter into an agreement that they can collect and use my data for specific purposes. This is more akin to a hacker accessing my data than a corporation collecting information as I use their service.

      The two do not equate.

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

      • identicon
        Anonymous Coward, 6 Jan 2018 @ 8:45am

        Re: Re: What the hell does the "dept" mean?

        "First of all, google isn't going to take all my location data and try to arrest or imprison me based on loose assumptions of my intentions based on innocuous activity."

        That depends on what you call a prison. I consider the ubiquity of their ad-tracked based content a "prison" for the mind. We aren't quite to the point where half the species is drooling on itself while connecting up to trodes yet, but give them time. Incidentally I regard FB amd MS the same way. If it isn't imprisonment yet, it is certainly battery.

        "People have and still do take issue with and argue about the legality of how companies like verizon collect and use their data."

        I am one. As an exercise take several topics you are not interested in, and communicate about them over and around certain equipment in an isolated environment, then observe closely how your advertising changes. Statistically it is a simple matter to prove how much surveillance there is out there and which equipment is surveilled. And it is in everything, including landline phone service.

        We aren't approaching fascism. We are there. Have been for a while now.

        "none of the corporations you could mention have a requirement under the law"

        Perhaps not under regulation, but under law? I think your being obtuse. Constitutional law is derived from natural law. It is not so much the law itself, but rather the codification of it. Which is to say that violation of civil rights is unlawful, regardless of whom the perpetrators or victems are.

        Which is to say that many behaviors of carriers and advertisers are unlawful. And while there may be regulatory capture implemented by state and corporate-nobility that institutionalizes those conflicts with civil rights, they are no less conflicts for it. All that has been achieved is to make the exercise of those rights both an act of patriotism, and a statutory crime at the same time.

        There is compounding interest bearing on that particular debt. The corps and the state can continue pointing fingers at each other. Of course nobody is going to ask for excuses when heads start rolling.

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

  • identicon
    Anonymous Coward, 5 Jan 2018 @ 9:09pm

    In our dystopian future it will be illegal to turn off your cell phone, remove the battery or wrap it in tin foil.

    I don't know officer, was that thing really in the microwave?

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

  • icon
    freedomfan (profile), 5 Jan 2018 @ 11:51pm

    Third Party Doctrine == Crap

    Once again, the third party doctrine is based on nothing, is counterintuitive to the citizenry in many situations, and yields absurd results. Dump it. I know the odds may be against SCOTUS eliminating the TPD, but cases like this highlight why it should and why the public should be outraged by it.

    The basic notion that a citizen's interaction with another citizen or entity necessarily happens without any expectation of privacy is ridiculous. Of course I expect the phone company to keep my location information private. If Verizon, AT&T, et al. published an open web page where one could look up the location information of a given person or phone number, people would be outraged. And, frankly, I'd bet the government would be, too. In that hypothetical, how long would it be before some politician or state's attorney decided to go after the mobile carrier for doing that? So, clearly, people do expect that such information is private.

    Why do these law enforcement agencies work so hard to sidestep and undermine the U.S. Bill of Rights? Why do they hate America?

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

    • identicon
      Anonymous Coward, 6 Jan 2018 @ 3:32am

      Re: Third Party Doctrine == Crap

      The basic notion that a citizen's interaction with another citizen or entity necessarily happens without any expectation of privacy is ridiculous.

      What is even more ridiculous is that protection for a person reveling information that they discover has become a right for the police to demand Information. Surely if the police are demanding infomation, it is a search and seizure, and should require a warrant.

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

    • identicon
      Jeromy, 8 Jan 2018 @ 5:57am

      Re: Third Party Doctrine == Crap

      Most people in this country don't even know what's going on and I'd venture a guess and say that if they did, they wouldn't care.

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

  • identicon
    Anonymous Coward, 6 Jan 2018 @ 3:38am

    Hope the cops enjoy the Irony

    When insurance companies start using 3rd party cell data to proove cops have lied and do not deserve the money they have been getting, I am going to laugh until I collapse. They brought it on themselves and they will be the ones suffering for the next few decades.

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

    • identicon
      Anonymous Coward, 6 Jan 2018 @ 7:33am

      Re: Hope the cops enjoy the Irony

      Insurance companies have been and will continue to base your rates upon data unrelated to your actual driving history. For example; credit score, where you live, where your commute takes you. I would not be surprised to find out that there are other ridiculous parameters which they feel entitled to monitor because of their incorrect belief it predicts the future.

      Health insurance companies probably want to, if they do not already, monitor your loyalty cards and charge you based upon whether they think you are eating healthy or not.

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

    • identicon
      Anonymous Coward, 6 Jan 2018 @ 11:34am

      Re: Hope the cops enjoy the Irony

      Do insurance companies use location data as an excuse to charge you more?

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

      • icon
        Roger Strong (profile), 6 Jan 2018 @ 3:27pm

        Re: Re: Hope the cops enjoy the Irony

        For home insurance they certainly do. Your home's location is used to assess crime risk. Also fire risk; how far away you are from fire stations and hydrants, and flood risk.

        Life insurance may include behavioral risk, tied to the number and types of claims of other people in your area.

        Your car insurance will take some of these into account.

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

        • identicon
          Anonymous Coward, 7 Jan 2018 @ 10:00am

          Re: Re: Re: Hope the cops enjoy the Irony

          Nice vehicle you have there ...

          You do not have insurance if you refuse to let us track you.

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

  • identicon
    Anonymous Coward, 6 Jan 2018 @ 7:27am

    Pure BULLSHIT. I Expect privacy EVERY FUCKING WHERE.

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

  • identicon
    Anonymous Coward, 6 Jan 2018 @ 7:35am

    Hmmmm - the phrase "credit score" triggers the ban hammer?

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

  • identicon
    Anonymous Coward, 6 Jan 2018 @ 7:35am

    It has become ever so clear why the deep state treasonous hate America like they do. Nothing hidden that won't be revealed. Go Hate Thyself.

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

    • identicon
      Anonymous Coward, 6 Jan 2018 @ 7:38am

      Re:

      This nebulous so called "deep state" is treasonous even though you can not identify who you are talking about.

      LOL - Do explain.

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

    • icon
      Stephen T. Stone (profile), 6 Jan 2018 @ 10:56am

      Re:

      deep state

      Please identify who is part of this group and what they hope to accomplish.

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

      • identicon
        Anonymous Coward, 6 Jan 2018 @ 1:35pm

        Re: Re:

        actually I kind of like the phrase. It is the reciprocal of all the "evil hackers are out to harm you" propaganda that hollywood flings about. The "deep web", oooOOOoooo.

        Hollywood is pretty much saying the same shit about computer technicians and scientists every day, that Joseph Goebbels was saying about the Jews in the 40's. OooooOOOoo. Those computer people are going to hurt you. The only computer people who exist in the world, are evil terrorists, and employees of demagogues.

        It is having the intended effect. The people who are most able to defend American civil rights in the modern era, are regarded publicly with contempt by most of the country. And the reality is that the level of surveillance at this point is so pervasive, that you aren't choosing your words very very carefully, you are likely to get locked up.

        They want to call exercising the 4th amendment, "the deep web"? OK. "deep state"? Yeah. Sounds good to me.

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

        • identicon
          Anonymous Coward, 6 Jan 2018 @ 6:28pm

          Re: Re: Re:

          Way to Godwin the thread, jackass.

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

        • identicon
          Anonymous Coward, 7 Jan 2018 @ 10:09am

          Re: Re: Re:

          "actually I kind of like the phrase. It is the reciprocal of all the "evil hackers are out to harm you" propaganda"
          - In reference to Deep State, the reciprocal would be Shallow State.


          "The "deep web""
          - The correct term is dark web.


          "Hollywood is pretty much saying ..."
          - What does this have to do with the topic at hand?
          - What movies gave you this weird impression?


          Not sure what you are getting at here.

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

      • icon
        Roger Strong (profile), 6 Jan 2018 @ 3:37pm

        Re: Re:

        Hawaii's area is 41.2% ocean. Much of it at great depth, not having a continental shelf. Hawaii is the deepest state.

        Obama is from Hawaii.

        Checkmate.

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

      • icon
        The Wanderer (profile), 8 Jan 2018 @ 5:29am

        Re: Re:

        The "deep state" consists of entrenched, career government officials, who remain in place across administrations, and by their presence and their actions impede new elected officials from enacting meaningful, significant change, thereby preventing the officials' campaign promises from being be fulfilled.

        This concept is one of the several consequences which has arisen from the decades of right-wing politicians lying to their electorate - not about what they would do once elected (although in many cases they may have also been lying about that), but about the things they said they would do being good things to do.

        Once elected, they look at the details of doing what they said they would do, realize what the consequences would be, and decide (reasonably) that those consequences are too much - so they don't do it. But they keep promising the same things to the voters, because those promises are what got them elected - or if they don't, then the people who do unseat them in a subsequent election.

        That electorate looks at the fact that politician after politician, once elected, does not deliver on what was promised, and some of them conclude that there is some hidden force blocking these politicians from coming through on their promises - and hey, there are all these non-elected officials who tend to remain the same no matter who's in office; clearly they are in the best position to be blocking these changes, so they must be responsible!

        (I also believe that this "deep state" is what was meant by the term "the swamp" during Trump's Presidential campaign; if you look at things from that perspective, his gutting of various departments takes on a new aspect, and it becomes clear that he's doing quite a good job at "draining the swamp" - i.e., clearing out the members of the "deep state" - by getting rid of the people with the established skills and institutional knowledge which actually keep the government functioning properly.)

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

    • identicon
      Anonymous Coward, 6 Jan 2018 @ 6:27pm

      Re:

      You misspelled derp.

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

  • icon
    Ryunosuke (profile), 6 Jan 2018 @ 9:15am

    good, that means citizens now have access to cell site locators as well.

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

  • identicon
    Pixelation, 6 Jan 2018 @ 4:19pm

    What we need is...

    the cell site location information for all of our "representatives" in DC, since it's public information.

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

  • identicon
    Anonymous Coward, 7 Jan 2018 @ 8:38pm

    No expectation of privacy is normal in a police state.

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


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