Various US government agencies have spent a lot of time and energy hoping to ensnare as much cell phone data as possible without having to deal with the "barriers" erected by the Fourth Amendment. The feds, along with Los Angeles law enforcement agencies, have bypassed
the protections of the Fourth Amendment by deploying roving cell phone trackers that mimic mobile phone towers. The FISA Amendments Act has been used as a "blank check" for wholesale spying on Americans and has been abused often enough that the Director of National Intelligence was forced to admit
these Fourth Amendment violations publicly.
The good news is that a few of these overreaches are receiving judicial pushback. Orin Kerr at the Volokh Conspiracy has a very brief writeup of a recent shutdown of another cellphone-related fishing expedition led by an assistant US Attorney.
An attempt was made to acquire records for ALL cell phones utilizing four different towers in the area of a specific crime at the time of the event. As Kerr notes, this ruling refers to the Fifth Circuit court decision that found cell phone data to be protected under the Fourth Amendment, thus requiring a warrant
to access it.
Magistrate Judge Smith points out that part of the issue is that the principals involved (the assistant US Attorney and a special agent) seemed to lack essential knowledge of the underlying technology, and that this lack of knowledge prevented them from recognizing the overreach of their request:
Moreover, it is problematic that neither the assistant United States Attorney nor the special agent truly understood the technology involved in the requested applications. See In re the Application of the U.S. for an Order Authorizing the Installation and Use of a Pen Register and Trap and Trace Device, ––– F.Supp.2d ––––, 2012 WL 2120492, at *2 (S.D. Tex. June 2, 2012). Without such an understanding, they cannot appreciate the constitutional implications of their requests. They are essentially asking for a warrant in support of a very broad and invasive search affecting likely hundreds of individuals in violation of the Fourth Amendment.
There has been a lot of discussion
here at Techdirt regarding the incredible lack of knowledge
present in those seeking to regulate or exploit various technologies. Considering the amount of possible collateral damage and the heightened chance of rights violations, you'd think these entities would be exercising maximum caution before tampering with something they don't understand. Instead, the common approach is to use the ends (safety, crime prevention, etc.) to justify the missteps and rights-trampling of the means, leaving the judicial system and various trampled citizens to sort out the mess.
Judge Smith quotes the Fourth Amendment and points out that warrants must be issued and only "upon probable cause" before continuing to run down the list of wrongs in this request.
Finally, there is no discussion about what the Government intends to do with all of the data related to innocent people who are not the target of the criminal investigation. In one criminal investigation, the Government received the names, cell phone numbers, and subscriber information of 179 innocent individuals. See United States v. Soto, No. 3:09CR200 (D.Conn. May 18, 2010) (Memorandum in Support of Motion to Suppress). Although the use of a court-sanctioned cell tower dump invariably leads to such information being provided to the Government, in order to receive such data, the Government at a minimum should have a protocol to address how to handle this sensitive private information.
But, as Smith points out, the government doesn't have a protocol in place, even more than two years down the road.
Although this issue was raised at the hearing, the Government has not addressed it to date.
This is hardly new territory for government agencies. The TSA has had nearly 20 months
taking public comments on the use of various body imaging scanners, but despite two trips to the DC Circuit Court, it has yet to begin this process, something generally undertaken before
implenting a new system. If it's something the government feels may
be unpopular with the public, it tends to attempt to stall indefinitely, an (in)action that (again) places the burden back on the courts and the general public.
But, at least in this case, Judge Smith is using this lack of action against
the government representatives.
This failure to address the privacy rights for the Fourth Amendment concerns of these innocent subscribers whose information will be compromised as a request of the cell tower dump is another factor warranting the denial of the application.
It's a good sign that stalling tactics may hurt more than help in the future. Many government and law enforcement agencies are still looking for any loophole in current laws in order to bypass the limitations placed on them by the Constitution. There's still a long way to go before there's anything resembling an equitable relationship between the general public and those in power, but we'll take everything we can get and (hopefully) receive more help pushing back against these intrusions.