Your Phone Is a Pocket Rat

A federal appeals court approves warrantless cellphone tracking, which the NSA may already be doing.

Last month the New Jersey Supreme Court ruled that police generally need a warrant to obtain information about the locations of cellphone users. Last week the U.S. Court of Appeals for the 5th Circuit said just the opposite.

The first decision was based on Article I, Paragraph 7 of the New Jersey Constitution, while the second was based on the Fourth Amendment to the U.S. Constitution. But those provisions are virtually identical, banning "unreasonable searches and seizures" of "persons, houses, papers, and effects." The crucial difference between the two decisions is the "third party doctrine," an increasingly alarming menace to privacy.

Since the early 1970s, the U.S. Supreme Court has repeatedly declared that people have no constitutional right to privacy with respect to information they voluntarily share with others. New Jersey's courts have always rejected this principle, recognizing that people who disclose information for particular purposes do not thereby surrender all expectations of privacy.

A unanimous New Jersey Supreme Court therefore had no difficulty concluding that the government may not demand cellphone location data at will. "Disclosure of cell-phone location information, which cell-phone users must provide to receive service, can reveal a great deal of personal information about an individual," the court noted. "Yet people do not buy cell phones to serve as tracking devices or reasonably expect them to be used by the government in that way."

The 5th Circuit, by contrast, said people should know by now that connecting their wireless phone calls entails transmitting their locations to their service providers. Since no one is forced to use a cellphone, it reasoned, anyone who chooses to do so is voluntarily disclosing his whereabouts to a third party, thereby losing any reasonable expectation of privacy in that information.

"Cell site data are business records and should be analyzed under that line of Supreme Court precedent," the appeals court said, meaning they receive only as much protection as legislatures give them. While the case involved requests for two months of specific customers' location data, the court's logic would also apply to less discriminating investigations.

Suppose the National Security Agency (NSA), in addition to collecting information about the destinations, timing, and length of our calls, decided to amass a comprehensive database showing everywhere we go with our cellphones. It may be doing something like that already.

In a July 23 speech, Sen. Ron Wyden (D-Ore.), a member of the Senate Intelligence Committee who is constrained by secrecy rules from explicitly discussing classified surveillance programs, repeatedly hinted that we have not yet learned the full extent of the NSA's domestic snooping. As Cato Institute privacy specialist Julian Sanchez noted, Wyden also mentioned the perils of cellphone tracking no fewer than five times, which would be puzzling unless it had something to do with the subject of his speech, NSA surveillance.

"Government officials are openly telling the press that they have the authority to effectively turn Americans' smart phones and cell phones into location-enabled homing beacons," Wyden said, adding that "the case law is unsettled." That warning takes on added gravity in light of the 5th Circuit's decision, the first by a federal appeals court to squarely address the issue.

The 5th Circuit's ruling sits uneasily with U.S. v. Jones, the 2012 decision in which the Supreme Court said police need a warrant to track a car by attaching a GPS device to it. Although the majority opinion hinged on the physical intrusion required to install the device, five justices expressed the view that the breadth of information generated by tracking someone's car for a month was enough to trigger Fourth Amendment protection. Two months of cellphone location data provide an even more intimate view of a person's private life.

Concurring in Jones, Justice Sonia Sotomayor argued that the Court should reconsider the third party doctrine in light of all the sensitive information that is nowadays stored outside of people's homes. Her suggestion is looking wiser by the day.

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  • Fist of Etiquette||

    ...anyone who chooses to do so is voluntarily disclosing his whereabouts to a third party, thereby losing any reasonable expectation of privacy in that information.

    Who's the third party? There is me and there is my service provider.

  • Stew||

    Da coppers are the third party, because you have a cell phone, see?

  • Neoliberal Kochtopus||

    I fail to see how you have an expectation that your service provider will keep your records private.

  • db||

    If you were to sign a contract with a provider specifying they will keep your privacy intact?

  • Neoliberal Kochtopus||

    Then you can sue the provider for breach of contract.

  • db||

    Not sure of what your point is.

  • Neoliberal Kochtopus||

    When the government obtains cell phone records from Cell Phone Inc., how is that violating YOUR privacy?

  • db||

    I already addressed that.

  • Neoliberal Kochtopus||

    No, you didn't. These records are produced by Cell Phone, Inc. They aren't yours to protect.

  • db||

    You referred to them as "your records" earlier...

  • Bryan C||

    Fine. But location and time data isn't at all unique in that respect. Cell Phone, Inc. also generates lots of other "records", including the packets of data that are created and routed from point-to-point during your voice conversation, SMS messaging, or web browsing session.

    There's no bright line between metadata and data, you know. Every item of data is merely metadata in some other context.

    Once we concede that all third-party data is fair game, why would an intelligence agency give one arbitrary chunk of third-party data special protection over some other arbitrary chunk?

  • Wyrd Wulf||

    It's a bogus legal fantasy argument that you have no expectation of privacy because "they aren't your records". The law is full of them. So, if you need one here it is: the law of agency says that the agent acts only for the principal, and this relationship between customer and cellphone service provider is one of agency. Therefore, the agent cannot disclose the private information to the government unless instructed to do so by the principal.

    You can probably think of other legal theories if you want. I'm not sure what the defense argued here. But, as predicted so long ago, the federal judiciary will almost always increase the jurisdiction and power of the federal government. That is why the greatest check and balance devised by the founders was STATE SOVEREIGNTY.

  • grey||

    +1 to the lost conversation of State Sovereignty as a check and balance. If I hear the phrase 'A more perfect Union' one more time I'm going to have a seizure. I don't want to be perfectly union-ed with anyone...

  • Brian D||

    I had to have my car repaired when the check engine light went on, which meant the mechanic had to get inside the vehicle with an OBD reader to diagnose the problem. Therefore, I guess my car can be searched anytime by anyone, no warrant needed.

  • Cdr Lytton||

    If you have your rugs cleaned, a cop can join the crew and toss your home, right? You voluntarily let someone in so the Fourth no longer applies. Totally ok for them to have Geek Squad just deliver a copy of your hard drive when you bring your PC in, too.

  • ||

    Therefore, I guess my car can be searched anytime by anyone, no warrant needed.

    Cool, that means I can swipe the weed in your glovebox when running low

  • Ted S.||

    So you're like Obama, bogarting other people's joints.

  • Neoliberal Kochtopus||

    Not quite the right analogy. If you hit a person and run, then you get your car fixed for the damage and to get the blood off of it, you shared that information with your mechanic, which means he can share it with others.

  • dantheserene||

    You seem to be implying any sort of probable cause or warrant is required to obtain phone records? Under the third party doctrine neither probable cause nor warrant is required, and that is the entire point of the discussion.

  • ||

    Wait, you mean there isn't a presumption of guilt in our legal system? Well shit...

  • grey||

    NK isn't serious, right? It's sarcasm?

  • Inigo M.||

    Right. And if you voluntarily disrobe in the doctor's office, than it's perfectly okay for said doctor to take pics and share them with his friends and family and on the Internet -- according to this thinking.

    (Anthony Weiner would be thinking, "Oh, cool! I'll have to make an appointment.")

  • MappRapp||

    There is a guy that really seems to know whats going on. WOw.

    www.Mega-Anon.tk

  • West Texas||

    Sen. Ron Wyden (D-Ore.), a member of the Senate Intelligence Committee who is constrained by secrecy rules from explicitly discussing classified surveillance programs

    I still don't understand what the fuck is going on with Wyden. You'd think a duly elected senator of all people wouldn't hide behind the "it's classified" excuse and would be able to avoid punishment and raise a ruckus if they tried.

    If you don't like it, say something you prick. A sitting senator could - and should - be the most effective whistleblower possible, yet we keep getting these stories where he says, "I really wish I could have told you what I was seeing! Now you know how awful it is!"

    Fuck you.

  • CatoTheElder||

    I just take Wyden's statements as confirming the wildest NSA conspiracy theories that Alex Jones could imagine.

    The real situation is probably even worse. We only know what a low-level systems administrator was able to learn. When one considers that Wyden probably only knows a sugar-coated version of what is actually going on, and he won't even talk about that, it seems likely that the NSA is out for total information awareness a la Minority Report (probably without the psychics and rolling balls, but who knows?).

  • Ted S.||

    Wyden and the others are worried about getting arrested for releasing classified information and the security state types propagandizing that he deservs it, because it aids the terrorists and all that shit.

  • Bryan C||

    Yeah, well Wyden can cry me a river. He should either resign and stop pretending to be useful, or speak up and actually let the rest of us know what's happening.

    If Senators are excused from exposing blatant wrongdoing because they're all askeered of people saying mean things about them, then there's really no point in having a Senate Intelligence Committee. Or a Senate.

  • Ballz||

    Senators can't be prosecuted for what they say on the Senate floor.

  • Night Elf Mohawk||

    Work on passing a HIPAA for cell phone records or STFU. You either want to stop it or you don't.

  • Neoliberal Kochtopus||

    I agree with you, but I also agree with West Texas. A sitting Senator practically has an obligation to come forward with information that relates to his constituents. He shouldn't be emasculating himself in the interests of the Executive Branch.

  • Night Elf Mohawk||

    I agree with West Texas, also. It seems a lot like Wyden is trying to have it both ways: appear to oppose what the NSA is doing without actually doing anything to stop it.

    Even if he doesn't want to go so far as saying stuff from the safety of the Senate floor -- I think he should, but maybe he has reasons for not -- he could still work on legislation to establish definitively that cellphone records are private.

  • Bardas Phocas||

    See Something, Say Something - muthafucka
    http://www.dhs.gov/if-you-see-.....g-campaign

  • Fatty Bolger||

    He doesn't want to get kicked off the Intelligence Committee.

  • West Texas||

    And you know what? That's a perfectly legitimate excuse. That's why most of these fuckheads do what they do: they don't want to lose the perks of sitting in office and being treated importantly and getting to tell people what to do.

    Just don't act all shocked and scandalized and try to have it both ways. That's what rubs me wrong the most. He wants us to think he's on our side but he doesn't do a damn thing to stop it or expose it.

  • Harvard||

    So leak it. How hard can that be?

  • Bryan C||

    That would be harder to do after he's gone public. As it is, they could kick him off the committee today and then use his expulsion to discredit or dismiss whatever future statements he might decide to make.

  • CatoTheElder||

    The only right to privacy that the USG recognizes in 2013 is the sort of privacy that remains hidden in the penumbra of the Bill of Rights, and that is effective only in protecting a woman's right to choose an abortion should she become impregnated. Of course, under ObamaCare, that peculiar sort of privacy will not prevent the USG from knowing when women are impregnated and choose abortion.

  • Ted S.||

    I assume we're no longer getting any Brickbats? :-(

  • bmp1701||

    The only right to privacy that the USG recognizes in 2013 is the sort of privacy that remains hidden in the penumbra of the Bill of Rights, and that is effective only in protecting a woman's right to choose an abortion should she become impregnated.

    A scurrilous accusation! The penumbra also protects your right to go up the Hershey Highway with someone of the same sex AND your right to teach your kids the German language. What more could you want?

  • db||

    It is always a guarantee that any law purporting to "protect" something, be it privacy, the right to own a firearm, the right to speak freely, etc., will contain or be amended to limit, regulate, and destroy that thing.

  • creech||

    Why did the founders throw that "unreasonable" in there? Did they feel there were "reasonable" searches that could be conducted without a warrant? That damn "unreasonable" means less and less everyday, esp. since 9-11 put most of the public in fear of terrorists on every block.

  • Night Elf Mohawk||

    Did they feel there were "reasonable" searches that could be conducted without a warrant?

    That's the way it looks to me.

  • ||

    I pledged to back this Kickstarter project. Can't wait until this thing shows up in the mail.

  • Duke||

    Great idea. I'm guessing it's lead-lined or something like that. If it really works, and people start buying it, you can rest assured to powers that be will outlaw it.

  • bassjoe||

    A distressing number of people on this comment board - more than 1 - seem to have no problem with the third party doctrine, reasoning that if you choose to use a cell phone (or email or whatever), you choose to give up the privacy of your information to the government.

    As if in our modern economy, you actually have a choice as to whether you use cell phones, email, etc. You don't, odds are your business will fail, you won't be able to find a job, communicate effectively with anybody, etc. This is clearly the statists on SCOTUS creating an exception to the 4th Amendment out of thin air just because the people who drafted the amendment could not even comprehend electricity, let alone instantaneous GPS tracking of a device smaller than a hand.

  • Bryan C||

    True. But the third-party doctrine doesn't make any sense even in an historical context. The founders didn't have cell phones, but literate citizens certainly used clerks and messengers and couriers and even printing presses. I can't imagine Alexander Hamilton suggesting that he had implicit permission to read your mail because you'd dictated your correspondence to your secretary instead of writing it down yourself.

  • GroundTruth||

    Good analogy, since that clerk or scribner would have been out of a job PDQ if he disclosed his employer's information w/o a warrant.

  • ΘJΘʃ de águila||

    ".......Sen. Ron Wyden (D-Ore.), a member of the Senate Intelligence Committee who is constrained by secrecy rules....."

    I'm getting sick and fucking tired of reading -- in every article on the subject -- about how Wyden is constrained from telling the public about the criminal activities of the Fascist surveillance state."

    Have some fucking balls, Wyden. What are they going to do to YOU?

  • GroundTruth||

    The fifth ruling that "you should know by now" is the same is the foolishness of saying that you can get there other ways than by plane if you don't want to deal with the security BS. As a practical matter, both require one to drop out of our society, i.e. to give up a fundamental right to association. The concept is flawed beyond belief!

  • melpee||

    Legal or not, NSA cops can track and tap any phone in the name of national security. If a dope dealer or tax evader is accidently uncovered the info goes to the proper agency. The data base even has conversations between a married guy and his hooker, that info is not presently available to inquiring wives.

  • Aluhaii||

    Will it cut feds chase if I lock in my safe? It's a big one. How about my lap top?

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