Court allows warrantless cell location tracking

[jack sommerset]

http://news.cnet.com/8301-31921_3-20015743-281.html

The FBI and other police agencies don't need a search warrant to track the locations of Americans' cell phones, a federal appeals court ruled on Tuesday in a precedent-setting decision.

In the first decision of its kind, a Philadelphia appeals court agreed with the Obama administration that no search warrant--signed by a judge based on a belief that there was probable cause to suspect criminal activity--was necessary for police to obtain logs showing where a cell phone user had traveled.

A three-judge panel of the Third Circuit said (PDF) tracking cell phones "does not require the traditional probable-cause determination" enshrined in the Fourth Amendment, which prohibits government agencies from conducting "unreasonable" searches. The court's decision, however, was focused on which federal privacy statutes apply.

But the panel sided with civil-liberties groups on an important point: it agreed that, in at least some cases, judges may require investigators to obtain a search warrant. That is, however, "an option to be used sparingly," the court said.

Some questions are likely to be resolved in future proceedings, once the case returns to a lower court. "It is still an open question as to whether the Fourth Amendment applies to cell phone records," Electronic Frontier Foundation attorney Kevin Bankston said after the ruling. "This decision does not definitively answer the question of the Fourth Amendment status of cell phone [location records]."

In this case, U.S. Magistrate Judge Lisa Lenihan denied the Justice Department's attempt to obtain stored location data without a search warrant, saying federal privacy law prohibited it. Lenihan's ruling, in effect, would require police to obtain a search warrant based on probable cause--a more privacy-protective standard.

The Obama administration had argued that warrantless tracking is permissible because Americans enjoy no "reasonable expectation of privacy" in their--or at least their cell phones'--whereabouts. U.S. Department of Justice lawyers said "a customer's Fourth Amendment rights are not violated when the phone company reveals to the government its own records" that show where a mobile device placed and received calls.

Lenihan had required the Justice Department to demonstrate "probable cause," a standard used in search warrants. But the three-judge panel rejected that idea, saying Lenihan "erred" and the relevant requirement is a "lesser one than probable cause" that is less privacy-protective.

The Bureau of Alcohol, Tobacco, Firearms, and Explosives, or ATF, had told Lenihan that it needed historical (meaning stored, not future) phone location information because a set of suspects "use their wireless telephones to arrange meetings and transactions in furtherance of their drug-trafficking activities." The name of the mobile-service provider is not public.

The ACLU, the Electronic Frontier Foundation, and the Center for Democracy and Technology had argued (PDF) that because cell phone information "is protected by the Fourth Amendment," a search warrant was necessary. The court did not squarely address that question in Tuesday's ruling.

EFF's Bankston said it was encouraging to see a ruling that allowed judges to demand search warrants at least in some cases. "The court explicitly refused to set a boundary for the court's discretion," he said. "It clarifies that judges have the discretion that the government has long argued they don't have."

The Justice Department did not immediately respond to questions from CNET about whether it would appeal that portion of the ruling to the Supreme Court or seek a review from the Third Circuit.

Not long ago, the concept of tracking cell phones would have been the stuff of spy movies. In 1998's "Enemy of the State," Gene Hackman warned that the National Security Agency has "been in bed with the entire telecommunications industry since the '40s--they've infected everything." After a decade of appearances in "24" and "Live Free or Die Hard," location tracking has become such a trope that it was satirized in a scene with Seth Rogen from "Pineapple Express" (2008).

Cell phone tracking comes in two forms: police obtaining retrospective historical data kept by mobile providers for their own billing purposes that is typically not very detailed, or prospective tracking--which CNET was the first to report in a 2005 article--that reveals the minute-by-minute location of a handset or mobile device.

The Obama administration argues that no search warrant is necessary; it says what's needed is only a 2703(d) order, which requires law enforcement to show that the records are "relevant and material to an ongoing criminal investigation."

[LnGrrrR]

Fuck that ruling. Why not just rule that cops can sit in front of a random person's home 24/7, just hoping they break a law?

Figures Obama would argue that a cellphone includes no "reasonable sense of privacy"... even though cell phones are almost always kept on or near one's person, and tracking a cell phone pretty much shows where a person is (which is the reason they're doing so in the first place). Why not just argue that the gov't has the right to monitor and track citizens at any time without warrants? It amounts to the same thing.

If Obama thinks I'm voting for him in 2012, he's severely wrong. I'll vote for the Libertarian candidate over this dictator-wannabe. (Hyperbole much? Of course. I'm pissed.)

[LnGrrrR]

The Obama administration argues that no search warrant is necessary; it says what's needed is only a 2703(d) order, which requires law enforcement to show that the records are "relevant and material to an ongoing criminal investigation."


Hmm... did some research on this, and it at least shows that they need to go through a court, providing some check on executive. I still think the idea behind the ruling is toxic though.

[Blake]

Fuck that ruling. Why not just rule that cops can sit in front of a random person's home 24/7, just hoping they break a law?


I see it more as a cop following someone around 24/7.

[baseline bum]

Fuck that ruling. Why not just rule that cops can sit in front of a random person's home 24/7, just hoping they break a law?

Figures Obama would argue that a cellphone includes no "reasonable sense of privacy"... even though cell phones are almost always kept on or near one's person, and tracking a cell phone pretty much shows where a person is (which is the reason they're doing so in the first place). Why not just argue that the gov't has the right to monitor and track citizens at any time without warrants? It amounts to the same thing.

If Obama thinks I'm voting for him in 2012, he's severely wrong.

Yeah, Obama's presidency has been the biggest disappointment since Snoop Dogg's second album. Sucking a little less than Bush (by that I mean he's not a religious nut and we're not in Iran yet) is something that hardly motivates me to mark the ballot for him again.

[Blake]

If Obama thinks I'm voting for him in 2012, he's severely wrong. I'll vote for the Libertarian candidate over this dictator-wannabe. (Hyperbole much? Of course. I'm pissed.)


Yeah, Obama's presidency has been the biggest disappointment since Snoop Dogg's second album. Sucking a little less than Bush (by that I mean he's not a religious nut and we're not in Iran yet) is something that hardly motivates me to mark the ballot for him again.

Palin 2012!

[ElNono]

And here's the punchline...

Supreme Court Agrees To See Whether Or Not AT&T Has 'Personal Privacy' Rights (http://www.techdirt.com/articles/20100928/22435711204/supreme-court-agrees-to-see-whether-or-not-at-t-has-personal-privacy-rights.shtml)
from the do-corporations-have-privacy-rights? dept

Back in May, we wrote about an important case questioning whether or not companies have privacy rights (http://www.techdirt.com/articles/20100525/1906469574.shtml). Traditionally, privacy rights were seen as being for individuals, not companies, but AT&T claimed that it had privacy rights over data collected by the FCC in an attempt to determine if AT&T was bilking the e-rate program (for installing broadband connections to schools). Some people filed a Freedom of Information Act request over the data, and the FCC released some of it (keeping some secret to protect trade secrets). However, AT&T sued the FCC claiming that even releasing the limited info the FCC was planning to put out would violate the company's personal privacy. The Third Circuit appeals court in the case sided with AT&T, saying that companies could have personal privacy -- and the case was appealed to the Supreme Court.

The Supreme Court has now announced that it will hear the case (http://www.businessweek.com/ap/financialnews/D9IGVHKG0.htm). The Obama administration had asked the Supreme Court to hear the case, claiming that it did not believe "personal privacy" applied to companies. Elena Kagan, who had filed the brief for the administration, will obviously sit the case out now that she's a Supreme Court justice. However, this will be yet another, in a recent line of cases, trying to establish the boundaries (if there are any) between the rights of individuals and the rights of corporations.

[jack sommerset]

Palin 2012!

:toast Lets all hold hands and pray to the good lord that little milf runs!!!!

[Blake]

And here's the punchline...

Supreme Court Agrees To See Whether Or Not AT&T Has 'Personal Privacy' Rights (http://www.techdirt.com/articles/20100928/22435711204/supreme-court-agrees-to-see-whether-or-not-at-t-has-personal-privacy-rights.shtml)
from the do-corporations-have-privacy-rights? dept

Back in May, we wrote about an important case questioning whether or not companies have privacy rights (http://www.techdirt.com/articles/20100525/1906469574.shtml). Traditionally, privacy rights were seen as being for individuals, not companies, but AT&T claimed that it had privacy rights over data collected by the FCC in an attempt to determine if AT&T was bilking the e-rate program (for installing broadband connections to schools). Some people filed a Freedom of Information Act request over the data, and the FCC released some of it (keeping some secret to protect trade secrets). However, AT&T sued the FCC claiming that even releasing the limited info the FCC was planning to put out would violate the company's personal privacy. The Third Circuit appeals court in the case sided with AT&T, saying that companies could have personal privacy -- and the case was appealed to the Supreme Court.

The Supreme Court has now announced that it will hear the case (http://www.businessweek.com/ap/financialnews/D9IGVHKG0.htm). The Obama administration had asked the Supreme Court to hear the case, claiming that it did not believe "personal privacy" applied to companies. Elena Kagan, who had filed the brief for the administration, will obviously sit the case out now that she's a Supreme Court justice. However, this will be yet another, in a recent line of cases, trying to establish the boundaries (if there are any) between the rights of individuals and the rights of corporations.

I was wondering what the telecoms' feelings were on the subject....

[Blake]

:toast Lets all hold hands and pray to the good lord that little milf runs!!!!

so you do actually want Obama to be president again....

[Wild Cobra]

Fuck that ruling. Why not just rule that cops can sit in front of a random person's home 24/7, just hoping they break a law?

Figures Obama would argue that a cellphone includes no "reasonable sense of privacy"... even though cell phones are almost always kept on or near one's person, and tracking a cell phone pretty much shows where a person is (which is the reason they're doing so in the first place). Why not just argue that the gov't has the right to monitor and track citizens at any time without warrants? It amounts to the same thing.

If Obama thinks I'm voting for him in 2012, he's severely wrong. I'll vote for the Libertarian candidate over this dictator-wannabe. (Hyperbole much? Of course. I'm pissed.)
Does anyone really believe that our president isn't one of the biggest authoritarians we have ever had?

[Yonivore]

Fuck that ruling. Why not just rule that cops can sit in front of a random person's home 24/7, just hoping they break a law?

Figures Obama would argue that a cellphone includes no "reasonable sense of privacy"... even though cell phones are almost always kept on or near one's person, and tracking a cell phone pretty much shows where a person is (which is the reason they're doing so in the first place). Why not just argue that the gov't has the right to monitor and track citizens at any time without warrants? It amounts to the same thing.

If Obama thinks I'm voting for him in 2012, he's severely wrong. I'll vote for the Libertarian candidate over this dictator-wannabe. (Hyperbole much? Of course. I'm pissed.)
Not that hyperbolic, if you ask me.

[jack sommerset]

so you do actually want Obama to be president again....

No. I am with you ont his one. Palin 2012!!!!!!!!!!!!!!!!!!!!

[Blake]

No. I am with you ont his one. Palin 2012!!!!!!!!!!!!!!!!!!!!

Palin 2012 for Obama 2012!!!!!!!!!!!

[Stringer_Bell]

Any President in office would have signed off on this, it's for our own good! :hat

[DarkReign]

Any President in office would have signed off on this, it's for our own good! :hat

/sarcasm

Obama is the single most disappointing President in my lifetime. At least with the others, you knew what you were voting for or against.

Not this charlatan. Lies from beginning to end, I hope his punk-ass is voted out in 2012. Go the way of Carter, douchebag.

[Stringer_Bell]

/sarcasm

Obama is the single most disappointing President in my lifetime. At least with the others, you knew what you were voting for or against.

Not this charlatan. Lies from beginning to end, I hope his punk-ass is voted out in 2012. Go the way of Carter, douchebag.

Sarcasm about it being for our own good. Sincere belief that ANYONE in the Presidential chair would sign off on it. Left/Right, they're not going to fight for privacy when law enforcement/military need to get their way - at least most of the time. When has any President in the modern era spoke up for the little guy, can anyone give a credible example? :greedy

[BlairForceDejuan]

Fuck that ruling. Why not just rule that cops can sit in front of a random person's home 24/7, just hoping they break a law?

Figures Obama would argue that a cellphone includes no "reasonable sense of privacy"... even though cell phones are almost always kept on or near one's person, and tracking a cell phone pretty much shows where a person is (which is the reason they're doing so in the first place). Why not just argue that the gov't has the right to monitor and track citizens at any time without warrants? It amounts to the same thing.

If Obama thinks I'm voting for him in 2012, he's severely wrong. I'll vote for the Libertarian candidate over this dictator-wannabe. (Hyperbole much? Of course. I'm pissed.)

What did you expect? Before the 08 election it was obvious the dude loved him some powwwwwaaaaa. "The constitution only gives Government negative rights, booohooooo." Remember?


Thinking the dems are somehow going to grant everyone more freedom is a farce. They get you guys to buy into it because it makes you feel good but in reality it just gives them power.

Libertarians are the answer to liberals social wants and conservatives fiscal wants. Yet they have 0 chance :downspin:

[balli]

About half the time I keep the battery and smartchip out of my phone. This is why. I wouldn't be surprised if phone makers start or already do stuff hidden auxiliary batteries into their phones that are just powerful enough to track you when you think the phone is turned off.

Yet they have 0 chance
Yeah. Well. Too bad a bunch of former Bushies are now repping and defiling the liberterian brand. Libertarianism might've had a fighting chance (one day) if it hadn't been been compromised and packaged by billionaires and their teabagger sheep herds.

[DarkReign]

Sarcasm about it being for our own good. Sincere belief that ANYONE in the Presidential chair would sign off on it. Left/Right, they're not going to fight for privacy when law enforcement/military need to get their way - at least most of the time. When has any President in the modern era spoke up for the little guy, can anyone give a credible example? :greedy

I knew you were being sarcastic and I understood what you meant (and agree, fwiw).

[LnGrrrR]

And here's the punchline...

Supreme Court Agrees To See Whether Or Not AT&T Has 'Personal Privacy' Rights (http://www.techdirt.com/articles/20100928/22435711204/supreme-court-agrees-to-see-whether-or-not-at-t-has-personal-privacy-rights.shtml)
from the do-corporations-have-privacy-rights? dept

Back in May, we wrote about an important case questioning whether or not companies have privacy rights (http://www.techdirt.com/articles/20100525/1906469574.shtml). Traditionally, privacy rights were seen as being for individuals, not companies, but AT&T claimed that it had privacy rights over data collected by the FCC in an attempt to determine if AT&T was bilking the e-rate program (for installing broadband connections to schools). Some people filed a Freedom of Information Act request over the data, and the FCC released some of it (keeping some secret to protect trade secrets). However, AT&T sued the FCC claiming that even releasing the limited info the FCC was planning to put out would violate the company's personal privacy. The Third Circuit appeals court in the case sided with AT&T, saying that companies could have personal privacy -- and the case was appealed to the Supreme Court.

The Supreme Court has now announced that it will hear the case (http://www.businessweek.com/ap/financialnews/D9IGVHKG0.htm). The Obama administration had asked the Supreme Court to hear the case, claiming that it did not believe "personal privacy" applied to companies. Elena Kagan, who had filed the brief for the administration, will obviously sit the case out now that she's a Supreme Court justice. However, this will be yet another, in a recent line of cases, trying to establish the boundaries (if there are any) between the rights of individuals and the rights of corporations.

Hm... if a corporation has "privacy rights", what exactly will fall under that? Documents? Billing? Methods of operation?

[ElNono]

Hm... if a corporation has "privacy rights", what exactly will fall under that? Documents? Billing? Methods of operation?

Anything they can afford, I'm sure.

[z0sa]

Fuck that ruling. Why not just rule that cops can sit in front of a random person's home 24/7, just hoping they break a law?

Figures Obama would argue that a cellphone includes no "reasonable sense of privacy"... even though cell phones are almost always kept on or near one's person, and tracking a cell phone pretty much shows where a person is (which is the reason they're doing so in the first place). Why not just argue that the gov't has the right to monitor and track citizens at any time without warrants? It amounts to the same thing.

If Obama thinks I'm voting for him in 2012, he's severely wrong. I'll vote for the Libertarian candidate over this dictator-wannabe. (Hyperbole much? Of course. I'm pissed.)

:tu:tu

I am disgusted with this ruling. Who leaves their cell phone anywhere but near their person? Why would they want it anywhere else, usually? So the govt can now find out where I'm at and where I've been, who I've been talking to, etc with very few legal barriers or even probable cause. Big Brother has arrived.

[boutons_deux]

Watch Corporate-Americans have their privacy protected, while Corporate-Americans remain free to rape Human-Americans' privacy.

[ElNono]

In related news...

Even Without COICA, White House Asking Registrars To Voluntarily Censor 'Infringing' Sites (http://www.techdirt.com/articles/20100929/20293711230/even-without-coica-white-house-asking-registrars-to-voluntarily-censor-infringing-sites.shtml)
from the censorship-through-political-pressure? dept

While there's been increasing attention paid to the "Combating Online Infringement and Counterfeits Act" (COICA), the proposed law that would allow the government to require ISPs and registrars to block access to websites deemed to be "dedicated to infringing activities," it looks like the White House (which we had thought was against censoring the internet) appears to be working on a backup plan in case COICA doesn't pass.

That is, while most folks have been focused on COICA, the White House's Intellectual Property Enforcement Coordinator (IP Czar) Victoria Espinel has apparently been holding meetings with ISPs, registrars, payment processors and others to get them to agree to voluntarily do what COICA would mandate. While the meeting is carefully focused on stopping websites that sell gray market pharmaceuticals, if registrars start agreeing to censoring websites at the behest of the government, it's as if we're halfway to a COICA-style censorship regime already. ICANN, who manages the internet domain name system was asked to attend the meeting, but felt that it "was not appropriate to attend" such a meeting.

While Espinel has certainly been a lot more open to talking with those of us concerned about the state of intellectual property laws (and has actually seemed quite willing to pay attention to what we're saying -- which I appreciate), these kinds of meetings appear quite troubling. I understand why the meetings are focused on so-called "illegal pharmacies," because then everyone supporting these actions can hide behind the claim of "protecting Americans from dangerous fake drugs." But the truth is that while some online pharmacies are quite questionable, many are simply "gray market" attempts to import drugs to the US from elsewhere where the identical drugs are sold for much less. In a global economy, that should be allowed. In fact, one could argue that keeping drugs artificially expensive in the US does a lot more harm to Americans than the chance of them getting a fake pill.

On top of that, it seems out of line for the US government to be involved in pressuring these companies, whether they're ISPs, domain registrars, payment processors or ICANN itself, to "voluntarily" block websites without a trial or due process. Yes, I can recognize that there can be legitimate health concerns with some of these websites, but those are better dealt with elsewhere. If a company is selling fake or harmful drugs, then laws within that country should be able to deal with it. If there are concerns about such drugs getting across the border, then it seems like a matter for border control. Asking internet companies to act as de facto "voluntary" censors seems like a big step too far.

And, of course, if it starts with such gray market pharmacies, you can only imagine how long it will take until the RIAA/MPAA/etc. come calling for the same sort of "voluntary cooperation" from the same companies for sites "dedicated to infringing activities," potentially killing off all sorts of innovation, before the market has a chance to adapt. When world wide web inventor Tim Berners-Lee and tons of other internet luminaries have come out against COICA, shouldn't the White House be a bit more careful before trying to get various internet players to voluntarily do the same thing with even less due process?

[Winehole23]

Fuck.

[ChuckD]

Eventually, crooks will learn to just put that bitch on airplane mode until you need to make a call. They can't follow/track you if your antenna is turned off.

[ElNono]

Eventually, crooks will learn to just put that bitch on airplane mode until you need to make a call. They can't follow/track you if your antenna is turned off.

Airplane mode is really not the proper way to do it, since it's a software stopgap. IE: The device can be programmed to merely display that it's in Airplane mode while it's really still transmitting.

That's why most savvy execs remove the batteries from their cellphones before going to any important meeting. They also leave their phones and batteries outside the room, since there has been cases where a mic and transmitter have been bundled inside the battery (by LE no less).

[LnGrrrR]

Airplane mode is really not the proper way to do it, since it's a software stopgap. IE: The device can be programmed to merely display that it's in Airplane mode while it's really still transmitting.

That's why most savvy execs remove the batteries from their cellphones before going to any important meeting. They also leave their phones and batteries outside the room, since there has been cases where a mic and transmitter have been bundled inside the battery (by LE no less).

This is also done in the military when entering sensitive rooms (Command Post for example, or NSA areas). The phone gets left outside.

[Winehole23]

Imagine if the US government, with no notice or warning, raided a small but popular magazine's offices over a Thanksgiving weekend, seized the company's printing presses, and told the world that the magazine was a criminal enterprise with a giant banner on their building. Then imagine that it never arrested anyone, never let a trial happen, and filed everything about the case under seal, not even letting the magazine's lawyers talk to the judge presiding over the case. And it continued to deny any due process at all for over a year, before finally just handing everything back to the magazine and pretending nothing happened. I expect most people would be outraged. I expect that nearly all of you would say that's a classic case of prior restraint, a massive First Amendment violation, and exactly the kind of thing that does not, or should not, happen in the United States.

But, in a story that's been in the making for over a year, and which we're exposing to the public for the first time now, this is exactly the scenario that has played out over the past year -- with the only difference being that, rather than "a printing press" and a "magazine," the story involved "a domain" and a "blog."

There are so many things about this story that are crazy, it's difficult to know where to start, so let's give the most important point first: The US government has effectively admitted that it totally screwed up and falsely seized & censored a non-infringing domain of a popular blog, having falsely claimed that it was taking part in criminal copyright infringement. Then, after trying to hide behind a totally secretive court process with absolutely no due process whatsoever (in fact, not even serving papers on the lawyer for the site or providing timely notifications -- or providing any documents at all), for over a year, the government has finally realized it couldn't hide any more and has given up, and returned the domain name to its original owner. If you ever wanted to understand why ICE's domain seizures violate the law -- and why SOPA and PROTECT IP are almost certainly unconstitutional -- look no further than what happened in this case.
http://www.techdirt.com/articles/20111208/08225217010/breaking-news-feds-falsely-censor-popular-blog-over-year-deny-all-due-process-hide-all-details.shtml

[Winehole23]

*crickets*

[LnGrrrR]

Not this charlatan. Lies from beginning to end, I hope his punk-ass is voted out in 2012. Go the way of Carter, douchebag.

I agree, but for who? Do you really think McCain would've been better? He would've just done it out in the open. We probably would be in four or five wars by now.

[Winehole23]

(too late, too drunk)

[Winehole23]

Sen. Ron Wyden (D-Oregon) said Friday he would demand answers from the Department of Homeland Security about its domain seizure program known as Operation in Our Sites after it was revealed that the government kept a hip-hop music review site’s name for a year without affording the owner a chance to challenge the seizure.


Wyden also wants to know why there was no court record of the case, other than the initial seizure filing a year ago.


“I expect the administration will be receiving a series of FOIA [Freedom of Information Act] requests from our office and that the senator will have very pointed questions with regard to how the administration chooses to target the sites that it does,” said Jennifer Hoelzer, a Wyden spokeswoman. She said the senator was “particularly interested in learning how many secret dockets exist for copyright cases. There doesn’t seem to be an obvious precedent or explanation for that.”
http://www.wired.com/threatlevel/2011/12/wyden-domain-seizure/

[ElNono]

WH, I think you posted this in the wrong thread... the copyright war discussion is going on in the "next war on drugs" thread...

[Winehole23]

ok

[Winehole23]

cross posted at:

http://www.spurstalk.com/forums/showthread.php?t=174882&page=12

[spursncowboys]

http://lifehacker.com/5867161/this-web-sites-been-watching-your-bittorrent-habits-and-can-show-what-youve-been-downloading

[Winehole23]

A Missouri federal judge ruled the FBI did not need a warrant to secretly attach a GPS monitoring device to a suspect’s car to track his public movements for two months.


The ruling, upholding federal theft and other charges, is one in a string of decisions nationwide supporting warrantless GPS surveillance. Last week’s decision comes as the Supreme Court is expected to rule on the issue (http://www.wired.com/threatlevel/2011/11/scotus-big-brother-gps/all/1) within months in an unrelated case.


The ruling from Magistrate David Noce mirrored the Obama administration position before the Supreme Court during oral arguments on the topic in November. In short, defendant Fred Robinson, who was suspected of fudging his time sheets for his treasurer’s office job for the city of St. Louis, had no reasonable expectation of privacy (http://www.wired.com/threatlevel/2010/09/public-privacy/) in his public movements, Magistrate Noce said.
http://www.wired.com/threatlevel/2012/01/warrantless-gps-monitoring/

[boutons_deux]

"no reasonable expectation of privacy in his public movements"

but police appear to have an unreasonable expectation of privacy (no pics, no vids) in their public handling of Human-Americans.

[Winehole23]

yep

http://articles.chicagotribune.com/2012-01-02/news/ct-met-eavesdropping-law-20120102_1_eavesdropping-law-chicago-police-illinois

[Creepn]

It's simple. If you're about to commit a crime, leave your cellphone elsewhere. Just pres. obama looking out for the little guys when we gotta steal from those damn richers.

[Winehole23]

tracking automobiles is also at issue here

[Winehole23]

New data from law enforcement agencies across the country has confirmed what EFF has long been afraid of: while police are routinely using cell phone location tracking information, only a handful of agencies are bothering to obtain search warrants.


Since 2005, we've been beating the drum loudly (https://www.eff.org/issues/cell-tracking), warning that the government's attempts to track a person's physical location through their cell phone requires a search warrant. As we've said again (https://www.eff.org/deeplinks/2010/11/location-location-location-three-recent-court) and again (https://www.eff.org/deeplinks/2011/11/2011-in-review-location-privacy), because cell phone tracking can give the government a snapshot of a person's life through their movements (https://www.eff.org/deeplinks/2011/03/what-location-tracking-looks), a search warrant is necessary to safeguard against privacy intrusions.


Now new data -- obtained from a coordinated FOIA request (http://www.aclu.org/protecting-civil-liberties-digital-age/cell-phone-location-tracking-public-records-request) by the ACLU (http://www.aclu.org/) -- shows just how pervasive cell phone tracking is throughout the United States. The ACLU obtained 5,500 pages of records from over 200 different law enforcement agencies. The records revealed that most law enforcement agencies are using location tracking information routinely, with only 10 out of the more than 200 (http://www.aclu.org/protecting-civil-liberties-digital-age/cell-phone-tracking-request-law-enforcement-agencies) claiming they had not tracked cell phones.
https://www.eff.org/deeplinks/2012/04/local-cops-following-big-brothers-lead-getting-cell-phone-location-data-without

[Winehole23]

All this gloom and doom can be fixed in two ways. First, courts need to recognize that the Fourth Amendment prohibits pervasive and sustained government surveillance unless the police get a search warrant. For centuries, the government's biggest limitation was technological; it was difficult - if not impossible - to follow a person for days at a time. But with surveillance tools becoming smaller and cheaper, its easier for the government to use surveillance information from our own cars to investigate mundane, non-violent crimes (http://espn.go.com/nfl/story/_/id/7765279/ryan-leaf-arrested-montana-again-gps-implicates-ex-nfl-qb-crime). The Fourth Amendment needs to keep up with the changes in technology in order for its longstanding privacy protections to have meaning.


Second, Congress needs to step up and update our electronic privacy laws. The law that governs cell phone location data - the Electronic Communications Privacy Act (http://www.law.cornell.edu/uscode/text/18/part-I/chapter-119) ("ECPA") - is more than 25 years old, enacted in a time where cell phones were far from ubiquitous. The law has been unable to keep up with the rapid technological changes that have occurred since 1986, and the conflicting court opinions on the constitutionality of warrantless cell phone location tracking noted above is the end result. It's time for Congress to reexamine the law and bring it in line with our expectations of privacy today.


You can do your part by getting informed and checking out the ACLU's location data map (http://www.aclu.org/maps/your-local-law-enforcement-tracking-your-cell-phones-location) to figure out whether the cops where you live use location tracking data. Regardless of whether or not you live in a state where the cops track, you can tell Congress that its time to fix our broken and ancient technology laws by signing our action alert (https://action.eff.org/o/9042/p/dia/action/public/?action_KEY=8225), and taking a stand to protect our locational privacy from the prying eyes of the government.
same

[Winehole23]

In November 2009, police officers in the state of Washington seized an iPhone belonging to suspected drug dealer Daniel Lee. While the phone was in police custody, a man named Shawn Hinton sent a text message to the device, reading, "Hey whats up dogg can you call me i need to talk to you." Suspecting that Hinton was looking to buy drugs from Lee, Detective Kevin Sawyer replied to the message, posing as Lee. With a series of text messages, he arranged to meet Hinton in the parking lot of a local grocery store—where Hinton was arrested and charged with attempted possession of heroin.


Hinton wasn't Sawyer's only target. According to a court decision (http://scholar.google.com/scholar_case?case=3770598306366184953&q=washington+roden+sawyer+iphone&hl=en&as_sdt=2,39) summing up the facts, "Sawyer spent about 5 or 10 minutes looking at some of the text messages on the iPhone; he also looked to see who had been calling. Many of the text messages that Lee's iPhone had received and stored were from individuals who were seeking drugs from Lee."


So Sawyer texted one of the individuals on the list and asked him if he "needed more." The individual, Jonathan Roden, replied, "Yeah, that would be cool. I still gotta sum, but I could use some more. I prefer to just get a ball, so I'm only payin' one eighty for it, instead of two Ts for two hundred, that way." (The court helpfully explained that a "ball" is "a drug weight equivalent to approximately 3.5 grams.")


But can cops legally do this with seized cell phones? When their cases went to trial, Hinton and Roden both argued that Sawyer had violated their privacy rights by intercepting, without a warrant, private communications intended for Lee.
But in a pair of decisions, one of which was recently covered (http://www.forbes.com/sites/kashmirhill/2012/07/05/yes-the-cops-can-text-you-from-your-drug-dealers-iphone-to-bust-you/) by Forbes, a Washington state appeals court disagreed. If the decisions, penned by Judge Joel Penoyar and supported by one of his colleagues, are upheld on appeal, they could have far-reaching implications for cell phone privacy.
"No longer private or deserving of constitutional protection"

"There is no long history and tradition of strict legislative protection of a text message sent to, displayed, and received from its intended destination, another person's iPhone," Penoyar wrote in his decision. He pointed to a 1990 case (http://scholar.google.com/scholar_case?case=13174046463594031309&q=cell&hl=en&as_sdt=2,5&as_ylo=2012) in which the police seized a suspected drug dealer's pager as an example. The officers observed which phone numbers appeared on the pager, called those numbers back, and arranged fake drug purchases with the people on the other end of the line.


A federal appeals court held that the pager owner's Fourth Amendment rights against unreasonable search and seizure were not violated because the pager is "nothing more than a contemporary receptacle for telephone numbers," akin to an address book. The court also held that someone who sends his phone number to a pager has no reasonable expectation of privacy because he can't be sure that the pager will be in the hands of its owner.


Judge Penoyar said that the same reasoning applies to text messages sent to an iPhone. While text messages may be legally protected in transit, he argued that they lose privacy protections once they have been delivered to a target device in the hands of the police. He claimed that the same rule applied to letters and e-mail. (Police would still need to seize or search a phone or computer legally, and phones are much easier for cops to seize than computers, which generally require a warrant.)


"On his own iPhone, on his own computer, or in the process of electronic transit, Hinton's communications are shielded by our constitutions," he wrote (http://scholar.google.com/scholar_case?case=8800583651147684975&q=cell&hl=en&as_sdt=2005&sciodt=2,5&as_ylo=2012), referring to both the state and federal constitutions. "But after their arrival, Hinton's text messages on Lee's iPhone were no longer private or deserving of constitutional protection." Penoyar rejected Roden's privacy arguments on similar grounds.
http://arstechnica.com/tech-policy/2012/07/its-legal-cops-seize-cell-phone-impersonate-owner/

[ElNono]

http://spurstalk.com/forums/showthread.php?t=201439

[Winehole23]

ah thx

[Galileo]

http://news.cnet.com/8301-31921_3-20015743-281.html

The FBI and other police agencies don't need a search warrant to track the locations of Americans' cell phones, a federal appeals court ruled on Tuesday in a precedent-setting decision.

In the first decision of its kind, a Philadelphia appeals court agreed with the Obama administration that no search warrant--signed by a judge based on a belief that there was probable cause to suspect criminal activity--was necessary for police to obtain logs showing where a cell phone user had traveled.

A three-judge panel of the Third Circuit said (PDF) tracking cell phones "does not require the traditional probable-cause determination" enshrined in the Fourth Amendment, which prohibits government agencies from conducting "unreasonable" searches. The court's decision, however, was focused on which federal privacy statutes apply.

But the panel sided with civil-liberties groups on an important point: it agreed that, in at least some cases, judges may require investigators to obtain a search warrant. That is, however, "an option to be used sparingly," the court said.

Some questions are likely to be resolved in future proceedings, once the case returns to a lower court. "It is still an open question as to whether the Fourth Amendment applies to cell phone records," Electronic Frontier Foundation attorney Kevin Bankston said after the ruling. "This decision does not definitively answer the question of the Fourth Amendment status of cell phone [location records]."

In this case, U.S. Magistrate Judge Lisa Lenihan denied the Justice Department's attempt to obtain stored location data without a search warrant, saying federal privacy law prohibited it. Lenihan's ruling, in effect, would require police to obtain a search warrant based on probable cause--a more privacy-protective standard.

The Obama administration had argued that warrantless tracking is permissible because Americans enjoy no "reasonable expectation of privacy" in their--or at least their cell phones'--whereabouts. U.S. Department of Justice lawyers said "a customer's Fourth Amendment rights are not violated when the phone company reveals to the government its own records" that show where a mobile device placed and received calls.

Lenihan had required the Justice Department to demonstrate "probable cause," a standard used in search warrants. But the three-judge panel rejected that idea, saying Lenihan "erred" and the relevant requirement is a "lesser one than probable cause" that is less privacy-protective.

The Bureau of Alcohol, Tobacco, Firearms, and Explosives, or ATF, had told Lenihan that it needed historical (meaning stored, not future) phone location information because a set of suspects "use their wireless telephones to arrange meetings and transactions in furtherance of their drug-trafficking activities." The name of the mobile-service provider is not public.

The ACLU, the Electronic Frontier Foundation, and the Center for Democracy and Technology had argued (PDF) that because cell phone information "is protected by the Fourth Amendment," a search warrant was necessary. The court did not squarely address that question in Tuesday's ruling.

EFF's Bankston said it was encouraging to see a ruling that allowed judges to demand search warrants at least in some cases. "The court explicitly refused to set a boundary for the court's discretion," he said. "It clarifies that judges have the discretion that the government has long argued they don't have."

The Justice Department did not immediately respond to questions from CNET about whether it would appeal that portion of the ruling to the Supreme Court or seek a review from the Third Circuit.

Not long ago, the concept of tracking cell phones would have been the stuff of spy movies. In 1998's "Enemy of the State," Gene Hackman warned that the National Security Agency has "been in bed with the entire telecommunications industry since the '40s--they've infected everything." After a decade of appearances in "24" and "Live Free or Die Hard," location tracking has become such a trope that it was satirized in a scene with Seth Rogen from "Pineapple Express" (2008).

Cell phone tracking comes in two forms: police obtaining retrospective historical data kept by mobile providers for their own billing purposes that is typically not very detailed, or prospective tracking--which CNET was the first to report in a 2005 article--that reveals the minute-by-minute location of a handset or mobile device.

The Obama administration argues that no search warrant is necessary; it says what's needed is only a 2703(d) order, which requires law enforcement to show that the records are "relevant and material to an ongoing criminal investigation."

I thought Obama was in favor of civil liberties?

:lmao

[boutons_deux]

And if the dealer erases his phone's call log and phone book, the police can get his call logs from the cell phone carriers.

[Winehole23]

A former NSA official has accused the NSA’s director of deception during a speech he gave at the DefCon hacker conference on Friday when he asserted that the agency does not collect files on Americans.

William Binney, a former technical director at the NSA, said during a panel discussion that NSA Director Gen. Keith Alexander was playing a “word game” and that the NSA was indeed collecting e-mails, Twitter writings, internet searches and other data belonging to Americans and indexing it.


“Unfortunately, once the software takes in data, it will build profiles on everyone in that data,” he said. “You can simply call it up by the attributes of anyone you want and it’s in place for people to look at.”


He said the NSA began building its data collection system to spy on Americans prior to 9/11, and then used the terrorist attacks that occurred that year as the excuse to launch the data collection project.


“It started in February 2001 when they started asking telecoms for data,” Binney said. “That to me tells me that the real plan was to spy on Americans from the beginning.”


Binney is referring to assertions that former Qwest CEO James Nacchio (http://wired_threatlevel.contextly.com/redirect/?id=eFAF36LDeX&click=inbody) made in court documents in 2007 that the NSA had asked Qwest, AT&T, Verizon and Bellsouth in early 2001 for customer calling records and that all of the other companies complied with the request, but Nacchio declined to participate until served with a proper legal order.


“The reason I left the NSA was because they started spying on everybody in the country. That’s the reason I left,” said Binney, who resigned from the agency in late 2001.
http://www.wired.com/threatlevel/2012/07/binney-on-alexander-and-nsa/

[boutons_deux]

“It started in February 2001"

hmm, right after dickhead and his illegals occupied the Offal Office?

[Clipper Nation]

I agree, but for who? Do you really think McCain would've been better? He would've just done it out in the open. We probably would be in four or five wars by now.

http://www.esquire.com/cm/esquire/images/gF/esq-ron-paul-stage-0511-lg.jpg

[Winehole23]

Court of Criminal Appeals bars warrantless searches of cell phones, electronics incident to arrest (http://gritsforbreakfast.blogspot.com/2014/02/court-of-criminal-appeals-bars.html)The Texas Court of Criminal Appeals today held in Texas v. Granville (http://www.cca.courts.state.tx.us/opinions/Case.asp?FilingID=289780) that the Fourth Amendment protects against searches of cell phones incident to arrest. Texans now cannot have the contents of their cell phones and other electronic devices searched indiscriminately after they’re booked in jail. This was a major privacy and Fourth Amendment victory, once again putting the state at the forefront of electronic privacy issues nationally.




As an attorney friend described the ruling in an email, "The primary issue was whether the Fourth Amendment exception that allows searches of an arrestee’s property for contraband also allows a wholesale search of a cell phone. The decision has a good explanation about why modern technology requires heightened protection above that applied to shoes, pants, etc. The decision even cites with approval the recent DC Circuit decision holding the NSA metadata collection program unconstitutional." Here's an notable excerpt from the majority opinion:



The term "papers and effects" obviously carried a different connotation in the late eighteenth century than it does today. No longer are they stored only in desks, cabinets, satchels, and folders. Our most private information is now frequently stored in electronic devices such as computers, laptops, iPads, and cell phones, or in "the cloud" and accessible by those electronic devices. But the "central concern underlying the Fourth Amendment" has remained the same throughout the centuries; it is "the concern about giving police officers unbridled discretion to rummage at will among a person's private effects." This is a case about rummaging through a citizen's electronic private effects - a cell phone - without a warrant.


See the majority opinion (http://www.cca.courts.state.tx.us/opinions/pdfOpinion.asp?OpinionID=25167) from Judge Cochran, a concurrence (http://www.cca.courts.state.tx.us/opinions/pdfOpinion.asp?OpinionID=25169) from Judge Keller, and a lone dissent (http://www.cca.courts.state.tx.us/opinions/pdfOpinion.asp?OpinionID=25170) from Judge Keasler.




The US Supreme Court agreed this term to consider similar issues in a pair of related cases. According to Reuters (http://www.reuters.com/article/2014/01/17/us-usa-court-cellphone-idUSBREA0G1H320140117), "The court will hear oral arguments in April and issue rulings by the end of June. The cases are Riley v. California, 13-132 and U.S. v. Wurie, 13-212." The Texas CCA opinion governs state and local law enforcement, not the feds.




RELATED: Amarillo appeals court: 'A cell phone is not a pair of pants.' (http://gritsforbreakfast.blogspot.com/2012/11/amarillo-appeals-court-cell-phone-is.html)

MORE: From EFF (https://www.eff.org/deeplinks/2014/02/two-new-decisions-strengthen-cell-phone-privacy-texas-and-washington), which filed an amicus brief (https://www.eff.org/document/granville-amicus-brief) in the case.

http://gritsforbreakfast.blogspot.com/2014/02/court-of-criminal-appeals-bars.html