Appeals Court Has No Problem With Cops Using E911 Services To Perform Warrantless, Real-Time Tracking

from the what-part-of-'stored'-do-you-fail-to-comprehend? dept

The Fifth Circuit Appeals Court says it's fine if the government uses mandated emergency services to perform real-time GPS tracking. It doesn't go so far as to affirm the constitutionality of the actions, but it achieves the same ends by voting down the appellant's request for a rehearing.

What we can glean about the issue at stake comes from the eight-page dissent [PDF] written by judges James L. Dennis and James E. Graves, two of the seven judges who voted for a rehearing. In this case, the government used the defendant's cellphone provider to engage in real-time tracking. No warrant was obtained despite the government's shoulder-surfing of incoming GPS location data.

Defendant William Wallace contends that the Government violated the Fourth Amendment by ordering his service provider to activate his phone’s “Enhanced 911” capability and to relay his GPS coordinates in real time, including while he was in his home. The panel opinion concludes that, even if the Government’s real-time tracking of Wallace’s GPS coordinates was an unconstitutional search, Wallace cannot benefit from the exclusionary rule suppression of the fruits of that search because law-enforcement officials could have reasonably relied on open-ended language in 18 U.S.C. § 2703(c), a provision of the Stored Communications Act (SCA), as authorizing their actions.

Those are the facts of the case, but as the dissenting judges point out, the SCA clearly did not anticipate this use of the law, much less explicitly approve this GPS warrant end-around utilized by law enforcement. The government relied on good faith exception arguments made in two cases -- Leon and Krull. The latter holds that officers may rely on clear statutory authorization even if the statute is later proven to be unconstitutional. (In the Krull case, the statute was struck down a day after the disputed search took place.) This seems about right as courts hardly expect officers to know the laws they're supposed to enforce, much less the ones they're supposed to follow.

But that doesn't hold here. The dissent makes it explicit: the SCA provides no basis for warrantless commandeering of a phone's GPS system to track suspects. This isn't a passive collection of existing records. This turns a phone into a tracking device at the behest of law enforcement, even when the phone's owner may have taken measures to limit the collection of GPS data. There's nothing in the SCA that says any of this is constitutional.

Unlike in Krull, here there is no legislative judgment or dialogue between the courts and the legislature as to the constitutionality of the realtime GPS surveillance at issue. Congress passed the SCA over thirty years ago. At that time there was no E911 requirement, see 61 FED. REG. 40,374, and GPS was still experimental military technology that would not begin to be in widespread civilian use until over a decade later…

Furthermore, there's a Supreme Court decision to be considered -- one that strongly hinted real-time GPS tracking requires warrants (even if the Justices didn't actually go so far as to draw a bright line).

Moreover, as has been expressed by five members of the current Supreme Court and by members of this court, there is grave doubt as to the constitutionality of the kind of warrantless, real-time GPS tracking at issue in this case. See, e.g., United States v. Jones, 565 U.S. 400, 415–18 (2012) (Sotomayor, J. concurring) [...] Thus, both the nature of the statute and the nature of the alleged constitutional violation strongly suggest that Krull does not apply here.

The dissent then returns to the SCA. The government argues the SCA should be read to include real-time GPS tracking as something covered by the "or other information" phrase in the law. Since it's not communications, the government rationalizes, there should be no warrant requirement. The dissent points out the flaw in the government's reasoning by pointing to nothing more than the name of the law invoked to perform the warrantless tracking.

This holding ignores plain language in the SCA suggesting that real-time collection of GPS tracking information is not authorized by this statute. Section 2703(c) is part of the “Stored Communications Act.” (emphasis added). The pertinent section is entitled “Records concerning electronic communication service or remote computing service.” § 2703(c) (emphasis added). GPS coordinates that have not yet been created and would not be created absent the Government’s intervention cannot be called “records” or “stored” communications under any commonsense understanding of those terms.

This does nothing for the appellant or anyone who resides in the district, unfortunately. Law enforcement can still turn phones into tracking devices without warrants, barring any state legislation that provides more privacy protections than this district's interpretation of the Fourth Amendment. With its refusal to rehear this case, the Fifth Circuit has granted the government the luxury of interpreting "or other records" to include compelled real-time GPS tracking.


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  • identicon
    Anonymous Coward, 29 Mar 2018 @ 4:29pm

    Phones are tracking devices, full stop.

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

    • identicon
      Anonymous Coward, 29 Mar 2018 @ 4:39pm

      Re:

      So is your microwave

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

    • identicon
      Anonymous Coward, 29 Mar 2018 @ 7:08pm

      Re:

      They are also listening devices. What many people don't seem to know, as it's not been in the news in a while, is that the microphone can be remotely turned on without the person knowing.

      https://www.cnet.com/news/fbi-taps-cell-phone-mic-as-eavesdropping-tool/

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

      • icon
        btr1701 (profile), 30 Mar 2018 @ 8:26am

        Re: Re:

        > What many people don't seem to know, as it's not been in
        > the news in a while, is that the microphone can be
        > remotely turned on without the person knowing.

        Nothing new. The government has had the power to do that with landlines since the late 80s, maybe earlier. The telephone hanging on the wall of your kitchen or sitting on your bedroom nightstand was a pre-installed bug that could be activated at will by the government.

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

        • identicon
          Anonymous Coward, 2 Apr 2018 @ 8:57am

          Re: Re: Re:

          The telephone hanging on the wall of your kitchen or sitting on your bedroom nightstand was a pre-installed bug that could be activated at will by the government.

          It wasn't, unless they specifically bugged you ahead of time. People have tested this; as shipped, landline phone microphones are generally inoperable while on hook.

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

        • identicon
          charles bukowski, 8 Apr 2018 @ 12:17am

          btr 1701:computer speakers used for the same thing

          Your computer speakers are used to listen to what you talk about in your own home. It is used by advetising companie, and the federal government uses that same pathway to your speakers on your computer inside your home to track what you talk about..it is and hs been proven. Everything Edward Snowden has said is true.

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

  • identicon
    Rekrul, 29 Mar 2018 @ 5:19pm

    Coming next: After more abuse of the E911 service, smart phone makers introduce an option to completely disable the location information of their phones. Cops whine about how phone makers are helping criminals...

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

    • identicon
      Anonymous Coward, 29 Mar 2018 @ 6:13pm

      Re:

      I thought you could already do that, am I missing something?

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

      • identicon
        Anonymous Coward, 31 Mar 2018 @ 11:44am

        Re: Re:

        Nope, federal law mandates E911.

        That crap is enabled by force and there is penalties for service providers not complying with it.

        This is yet another well intentioned law being abused by a corrupt government. When granting power to the governement always remember, it's not about how the government uses it's power now, it's about how it can be used (or abused) in the future.

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

        • identicon
          Rekrul, 2 Apr 2018 @ 6:19pm

          Re: Re: Re:

          "Introducing the new location-blocking phone case! Just slip your phone into this stylish case and it will block all location signals being sent from your phone! Only $29.99! But wait, if you order in the next ten minutues, you'll receive not one, but TWO cases for the same price! Act now! Supplies are limited!"

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

  • identicon
    stine, 29 Mar 2018 @ 5:30pm

    10 amendment

    "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

    Am I not reading this 10th amemdment correctly?

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

    • icon
      Anonymous Anonymous Coward (profile), 29 Mar 2018 @ 7:38pm

      Re: 10 amendment

      I did submit this to Techdirt, but I will just leave this here for now.

      https://www.nytimes.com/2018/03/27/opinion/increasingly-unenforceable-constitution.html

      While I do or do not subscribe to all of the claims made in that article, I do think the scope is something to worry about. Have your constitutional rights violated?

      Well, OK, so what?

      That is not an answer I want to hear.

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

      • icon
        Bergman (profile), 1 Apr 2018 @ 10:24pm

        Re: Re: 10 amendment

        So what? So there is a pair of federal statutes on the books -- Title 18, Sections 241 & 242 -- that define the crime of violating a constitutional right under color of law.

        While you can sue under Title 42, Section 1983 in civil court for a violation of your rights, anything you can win a section 1983 lawsuit over is also a criminal law offense *Italic*and always has been!

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

    • icon
      Hugo S Cunningham (profile), 29 Mar 2018 @ 8:08pm

      Re: 10 amendment

      The Tenth Amendment leaves miscellaneous collective rights ("powers") to State and local governments. Is that what you had in mind?

      If you were thinking of miscellaneous individual "rights", look up the Ninth Amendment.

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

      • icon
        btr1701 (profile), 30 Mar 2018 @ 8:31am

        Re: Re: 10 amendment

        > The Tenth Amendment leaves miscellaneous collective
        > rights ("powers") to State and local governments.

        Not so much "miscellaneous" as "every power not mentioned in Article I, Section 8".

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

  • icon
    Uriel-238 (profile), 29 Mar 2018 @ 5:52pm

    So e911 data is not limited by actual emergency calls?

    That is going to set a terrible precedent since it encourages phone users to block 911 locational data services when there are real emergencies.

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

    • identicon
      Anonymous Coward, 29 Mar 2018 @ 7:16pm

      Re: So e911 data is not limited by actual emergency calls?

      ... or at least think they are actually blocking it, like the people who think the police and ems can't see the data on a "blocked" call.

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

  • identicon
    Anonymous Coward, 29 Mar 2018 @ 6:53pm

    Nothing like using a government mandated gps requirement to bypass that pesky Fourth Amendment...once again showing how our law enforcement views the Constitution as an impediment to doing their job.

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

  • icon
    Rapnel (profile), 29 Mar 2018 @ 7:19pm

    I gotta say, I really don't understand how this could possibly be permissible. Remotely enabling a real-time tracking device by law enforcement is now considered fair game? Five judges to two?

    We have to be missing some key parts of a story here. I mean... real-time tracking switched on, switched on remotely, for another person's device, on another person via direct intervention by law enforcement and that without a warrant. What am I missing?

    It's weird. The older I get the more respect I loose. This is rapidly devolving into a free country for enforcers. Above the law. And not just any law but some imaginary law just for lawmen that seems to have superseded the founding document underlying the rule of law for the country. It's fantastic I tell you, fantastic.

    Please say appealing to a higher court is an option here. Because.. Well because.

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

  • icon
    Hugo S Cunningham (profile), 29 Mar 2018 @ 8:25pm

    Not a very appealing defendant

    Not a very appealing defendant. Might that have weighed on the minds of the judges who upheld the conviction?

    (Though they do seem to be stretching the definition of "violent" in claiming *five* prior "violent felony" convictions. Two were actual assaults, but the others were drug offenses.)

    http://caselaw.findlaw.com/us-5th-circuit/1861388.html

    "William Chance Wallace is a confirmed member of Tango Blast, a Texas crime syndicate. As of 2015, Wallace had been convicted of five violent felonies: one count of possession of a controlled substance with intent to distribute, two counts of aggravated assault with a deadly weapon, one count of possession of a controlled substance, and one count of unlawful delivery of a controlled substance. Wallace violated his probation for the unlawful delivery charge and a warrant was issued for his arrest on January 15, 2015. In two separate cases, Wallace was charged with and pleaded guilty to: (1) being a felon in possession of a firearm, in violation of 18 U.S.C. ยงยง 922(g)(1), 924(a)(2), and 924(e); and (2) aiding and abetting retaliation against a witness in a criminal investigation."

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

    • icon
      That Anonymous Coward (profile), 30 Mar 2018 @ 5:15am

      Re: Not a very appealing defendant

      Even the lowest scum on the planet deserve the same rights we hope to have. If they start tipping the scales because hes a real bad guy it opens the door that little bit so they can throw it wide open.

      They demanded records be created so they could get them rather than get a warrant. Warrants are now seen as a bad thing, despite them being granted on the flimsiest things.

      We want you to ping their OnStar & show us the GPS coordinates. Who needs to get a warrant & place a tracker?? Well the court here upheld it was perfectly fine, so what if we used it against someone who wasn't as bad but we still didn't like.... keep complaining and you're next.

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

  • identicon
    Anonymous Coward, 29 Mar 2018 @ 10:20pm

    You could wrap it in tin foil

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

  • identicon
    Dustin, 29 Mar 2018 @ 11:16pm

    Every day or country is becoming more dystopian. Another reason I'm keeping my guns.

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

  • icon
    btr1701 (profile), 30 Mar 2018 @ 8:29am

    Statutory Validity

    > The latter holds that officers may rely on clear
    > statutory authorization even if the statute is later
    > proven to be unconstitutional. This seems about right as
    > courts hardly expect officers to know the laws they're
    > supposed to enforce, much less the ones they're supposed
    > to follow.

    More like anything else would be an unworkable system. If Congress passes a law, a cop can't be faulted for abiding by or enforcing that law absent a court ruling on its validity. Anything else would be chaos and no law could ever be enforced because there'd always be the possibility that some court somewhere might find all or part of it unconstitutional someday.

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

    • identicon
      Anonymous Coward, 30 Mar 2018 @ 12:05pm

      Re: Statutory Validity

      That's not what he's talking about. He's talking about the fact that courts have let cops off scott-free after violating the law or someone's constitutional rights that are explicitly spelled out in the Constitution or other major laws and saying "Well, you're supposed to uphold the law but we don't actually expect you to know what the law is".

      If a cop does something that is later declared by a court to be unconstitutional and the law is struck down, that's one thing. When a cop does something that is against the law and the court upholds that it was against the law, yet lets the cop off and tells him "not your fault, you aren't expected to know the laws you are enforcing and upholding" that's an entirely different matter.

      I don't expect cops to be lawyers but they should have a basic understanding of the laws they are going to be expected to uphold and have their feet held to the fire if they break those laws. I don't blame them if the government passes a law one day and changes it two days later, and in the confusion the cop ends up breaking it, but when they consistently violate people's well established and understood Constitutional rights, no, there is no excuse for that. That should have been taught in Police Law 101 and drilled into them from then on.

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

  • identicon
    Anonymous Coward, 30 Mar 2018 @ 10:12am

    No one has improved on first comment.

    > Phones are tracking devices, [period].

    There, de-UKed.

    All I can add is to advise that you get used to being tracked by your cell phone, as was designed in and been done since the first.

    I don't actually have any problem with it, but then I'm not making drug deals or other illegal activity...

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

    • icon
      Uriel-238 (profile), 30 Mar 2018 @ 11:59am

      Phones are tracking devices

      Where are all these savvy mobsters and terrorists who stick to using burners when engaged in illicit activities? Do they just not get caught because the police only pluck low-hanging fruit?

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


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