from the which-apparently-law-enforcement-already-knew dept
It's a lower-level decision but it still means something. Well, a couple of somethings. First off, it appears Connecticut law enforcement probably shouldn't continue seeking "live" cell site location information without a warrant. It also appears the law enforcement agency involved doesn't have access to a cell site simulator (Stingray, etc.).
New Haven Superior Judge Jon Blue agreed to suppress evidence in an ATM robbery case, saying it was the result of Connecticut State Police improperly asking in advance to receive periodic live updates from the phone company of the location of the suspect’s cellphoneThis sort of collection is nothing new. Many law enforcement agencies act under the belief that location information is just another business record, subject to fewer restrictions and a lower level of privacy protections. Generally speaking, courts have found the acquisition of historical cell site location data without a warrant to have minimal impact on Fourth Amendment protections. Using this information as a tracking device, however, has generated plenty of friction in the judicial system, something that probably won't be resolved until the Supreme Court tackles it.
The Monday ruling comes in the case of Terrance Brown, 29, of Stratford, who was charged with robbing several automated bank teller machines in 2010.
T-Mobile was ordered to provide the location of Brown’s cellphone every 10 minutes during the time police were tracking him.
In this case, the presiding judge found that the omnipresence of cellphones wasn't supposed to be viewed by law enforcement as a bold new world of exploitable tracking devices.
“The convenience of cellphones is well known; it is increasingly rare to meet someone who doesn’t carry one on his or her person,” Blue wrote. “But with this convenience comes the possibility of an Orwellian state.”Currently, the state's laws only demand law enforcement offer "reasonable, articulable suspicion" in exchange for phone records, including location info. (This is the same standard the NSA is "held" to in its acquisition of phone records.) The ACLU would like to see that raised to "probable cause," but it's going to be an uphill battle against reams of legal precedent. Circuit splits on the issue of whether location data should be considered a business record complicate the matter, but for the most part, jurisprudence suggests location data -- especially historical location data -- may act as an ad hoc tracking device but still somehow lands outside of the Fourth Amendment's protections.
But using a phone as a GPS stand-in isn't quite the same thing, not when law enforcement is issuing subpoenas demanding periodic updates on futurelocation pings. Judge Blue notes the case's prosecutors admitted state law does not permit the warrantless tracking of individuals via their cellphone providers. Not that this admission means much when weighed against law enforcement's actual actions.
Using a 2005 "update" to a telecommunications record statute (referred to by some as Connecticut's Patriot Act), law enforcement could secure "ex-parte" orders to obtain phone records and communications. All that's required is reasonable suspicion. And use these orders law enforcement did -- more than 14,000 times since the law was enacted. An attempt to restore the warrant requirement died this summer in the state's legislature. Perhaps the judge's decision here will prompt legislators to take another run at restoring some Fourth Amendment protections to cell phone records.
However, the lack of a prosecutorial challenge suggests law enforcement knows the law doesn't specifically grant it the power to perform real-time tracking of individuals without warrants. Then again, knowing this didn't stop it from doing it, and the end result is the loss of its collected evidence, and most likely the case itself.