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]

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]

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]

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
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. 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. 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!

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
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. 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. 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]

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]

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]

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!

[DarkReign]

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

/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, bag.

[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, bag.

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?

[BlairForceDejuan]

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 cons ution 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

[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?

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
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. 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. 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? Do ents? Billing? Methods of operation?

[ElNono]

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

Anything they can afford, I'm sure.

[z0sa]

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.)

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
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?