Kentucky Appeals Court Says Cops Need Warrants To Obtain Real-Time Cell Site Location Info

from the another-post-Carpenter-trimming-of-the-Third-Party-Doctrine dept

The Supreme Court's Carpenter decision added Fourth Amendment protections to historical cell site location information (CSLI). The Court recognized people had a privacy interest in their location info, even if it was collected and stored by third parties. This narrow finding -- that historical cell site info is covered by the Fourth Amendment -- has created ripples that are rocking the Third Party Doctrine boat, resulting in the Carpenter decision being applied to other records historically believed to be outside the Constitution's protections.

Kentucky's Court of Appeals has extended protections to real-time cell site location info -- something the country's top court expressly refused to do. (via FourthAmendment.com)

During an investigation of an armed robbery, police officers contacted the suspect's cell phone carrier and had an employee "ping" the phone to discover its location. The officers remained in contact with the carrier for the next hour-and-a-half, pinging the phone until they located the phone and the suspect. Officers intercepted the suspect upon his return to the town where the robbery took place. No warrant was sought.

Citing the Supreme Court's Carpenter decision (and a recent Massachusetts state court ruling), the court [PDF] agrees with the defendant: it's makes little sense to say tracking someone's past movements with historical CSLI is somehow be more worthy of Constitutional protection than actively tracking them using real-time CSLI.

We agree that the acquisition of real-time CSLI implicates significant, legitimate privacy concerns. As the Supreme Judicial Court of Massachusetts recently observed, when the police are able to ping a cell phone in order to discover its location, they also acquire the ability to identify the real-time location of its owner, which is “a degree of intrusion that a reasonable person would not anticipate[.]” Commonwealth v. Almonor, 120 N.E.3d 1183, 1195 (Mass. 2019) (quoting State v. Earls, 70 A.3d 630, 642 (N.J. 2013)). This distinguishes the situation from one in which the police track an individual in the public thoroughfare or seek access to records held by a third party. “Although our society may have reasonably come to expect that the voluntary use of cell phones -- such as when making a phone call -- discloses cell phones’ location information to service providers, and that records of such calls may be maintained, our society would certainly not expect that the police could, or would, transform a cell phone into a real-time tracking device without judicial oversight.”

Tracking people using CSLI does more than reveal their movements in public spaces -- places they could theoretically be observed by anyone, including law enforcement. It also tracks their movements in private spaces, since their phones go wherever they go. This puts it in Fourth Amendment territory.

Thus, because pinging a cell phone enables the police almost instantaneously to track individuals far beyond the public thoroughfare into areas where they would have a reasonable, legitimate expectation of privacy, we conclude that a warrant is required to acquire real-time CSLI.

The government argued that the good faith exception should apply. The real-time pings were performed two years before the Supreme Court delivered its Carpenter ruling. Beyond that, the officers said the state courts had delivered no rulings on point that would have put cops on notice they needed warrants to obtain real-time CSLI.

Wrong, says the court. The standard that needs to be applied to gray areas where privacy rights might be implicated isn't the lack of a "no" from the courts. It's the absence of a "yes."

Unfortunately for our purposes, the Hedgepath Court did not rule on the matter because it was able to resolve the case on other grounds, but its commentary makes it clear that at the time Reed’s cell phone was pinged, there was no clearly established, binding precedent in Kentucky regarding real-time CSLI upon which the police could rely. In the absence of such precedent, the decision to proceed without a warrant and without a showing of exigent circumstances or other exception does not support a finding of good faith.

Very few courts are willing to draw the line here. Usually, good faith is granted if no case on point has directly established cops cannot do certain things. But officers should be held to a higher standard: one that demands they have clearly established legal standards before they act, not simply assume the lack of legal blessing (from the legislature or courts) will make their questionable actions acceptable.

Filed Under: 4th amendment, cell site location info, csli, kentucky, location info, warrants


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  • identicon
    AricTheRed, 21 Feb 2020 @ 5:35am

    Mom had the same rule.

    The standard that got applied to my rear area, where "What I should be doing?" was the question, wasn't the lack of a "Oh Hell No!" from Mom, it was the absence of an "OK."

    Too bad more cops werent raised by my mom.

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

  • identicon
    Bruce C., 21 Feb 2020 @ 6:14am

    As much as I want the location data to be private...

    Isn't this basically the same argument that copyright trolls use? They claim that an IP address is the same as the owner of the account associated with that IP address.

    For an IP address, there could be multiple devices linked to the account, or a device could be used by another household member.

    A cell-phone's location tells you where the phone is. Not whether it's the owner who's carrying it, or even if it's been left somewhere.

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

    • icon
      James Burkhardt (profile), 21 Feb 2020 @ 7:31am

      Re: As much as I want the location data to be private...

      I'm not usre how the conclusion follows

      IP has a number of issues. One is that it is not conclusive that they have captured the correct IP, another is a question of if the ISP has correctly identified the subscriber responsible. Given how much of my usage Comcast hallucinates into existence, i would not be surprised if they don't actually know 100%. Various factors, including the sharing of IPs due to limited IPv4 addresses (and a refusal to upgrade) could lead to misidentification.

      That said, all the IP address gives you is the Subscriber's name, and the address registered for service, which might be the home of the subscriber. The big fight over IP lawsuits is the attempt to shakedown the subscriber without having reasonable suspicion that the subscriber is indeed the infringer. There are so many unknowns in the chain, from subscriber identification, to someone with a verizon phone using the Verizon wifi of a random person to infringe. Without extra data, there is no direct link between the identity of the subscriber and the identity of the infringer.

      In this case, The question is if a warrant is required, and that actually alleviates the identification concerns. In piracy cases, the smackdown comes often because there is no evidence the IP holder investigated if the subscriber was the infringer - because they most often can't. What they have can at best identify the subscriber. In the cell phone case, Without a warrant the investigation has that very concern - did the police identify the correct phone to track? Judicial review could help examine that very concern. As cell phones are rarely shared devices, the bar is lower, but judical review can help. Additionally, The police would also have to show there is probable cause that the person in question actually did the crime under investigation, which is strikingly similar to the reasons judges have been rejecting copyright troll cases.

      We are concerned with the privacy aspect of not having a warrant to access CSLI precisely because we want the police to show their work before we let them have that CSLI.

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

  • icon
    That One Guy (profile), 21 Feb 2020 @ 7:18am

    This? Get more of this, LOTS more of this

    Always refreshing when a court doesn't buy follow the 'no-one is dumber than a cop' rule and finds against them when they try to hide behind qualified immunity and/or good faith regarding actions which are clearly out of bounds.

    Now, if that would become the norm rather than the exception that would be even better.

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

  • icon
    ECA (profile), 21 Feb 2020 @ 12:03pm

    And all they had to do,

    If they had asked a Judge and gotten permission, it would all be OK...

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

  • identicon
    A ROGSification, 22 Feb 2020 @ 11:51am

    Really? Gray AREA of LAW?!

    Google "ROGS and gray area policing aka "high policing" " for the win!

    re:
    needs to be applied to gray areas where privacy rights might be implicated isn't the lack of a "no" from the courts.

    Gee, do ya think these pigs can (virtually) watch me take a crap?

    re: "Tracking people using CSLI"

    And then, track me across Los Angeles, from coffee shop to coffee shop as I write a subversive blog from public wifi?

    Yup. All that and more.

    The Domestic Violence Industrial Complex, aka Hegelian policing and its related anti-democratic mechanisms, depends upon these cases.

    And, some of this, too:

    https://theintercept.com/2014/02/24/jtrig-manipulation/

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


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