Spy in Your Pocket

Cellphone tracking

In July the New Jersey Supreme Court ruled that police generally need a warrant to obtain information about the locations of cellphone users. Less than two weeks later, 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 decision 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," which holds that people have no constitutional right to privacy with respect to information they voluntarily share with others.

Based on a series of Supreme Court decisions beginning in the early 1970s, federal courts are bound by this principle, which New Jersey courts have emphatically rejected. Hence the New Jersey Supreme Court 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. We therefore find that individuals have a reasonable expectation of privacy in the location of their cell phones under the State Constitution."

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 court said, meaning they receive only as much protection as legislatures decide to give them.

The 5th Circuit's ruling, the first by a federal appeals court to squarely address this issue, involved requests for two months of specific customers' location data. It 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 in Jones 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.

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  • Snark Plissken||

    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.

    There's that all sewn up in a nice little bow. Now can we finish off the 1st and 2nd Amendments for fuck's sake?

  • anon||

    I really like how the Government completely ignores intentions when it's convenient, yet piles heaps of shit upon intentions when it wants to fuck you long and hard in the ass with a big Pelosi-sized dick.

  • anon||

    ie; Yes, I am giving my location data to a third party in order for them to connect my call, not so they can broadcast my location to anyone who may or may not give a fuck.

  • fish_remote||

    ....when it wants to fuck you long and hard in the ass with a big Pelosi-sized dick.

    Must you summon the "Tony" demon so early on a beautiful Saturday morning.

  • R C Dean||

    Same drill as the TSA uses:

    Nobody has to fly anywhere, you have alternative means of transport, so by flying your are consenting to being searched, etc.

    Substitute use a train, bus, car, motorcycle, bicycle, horse, or walking for "fly", and you have the perfect rationalization for revoking the BOR for anyone who is moving around outside their house.

  • James Anderson Merritt||

    The whole third-party doctrine, and the notion of "business records" being somehow less entitled to secrecy than, for instance, NSA operations and policies, is specious. Suppose that a cell phone provider agreed with you to hold your dealings with them in the strictest confidence, or even to encrypt your communications with extremely difficult to crack crypto. Would the government simply say, "OK, we'll come back with a warrant," or would they put the screws to the provider until they cooperated or went out of business? I think recent events have shown us the answer to this question. In other words, even when you demand privacy, and your agreements with your associates include respect for your privacy, the government asserts that you have, and should have no reasonable expectation of, privacy. We should quit dignifying government's naked power grabs with the terms "reason," "reasoning," or "reasoned." If the government truly "reasoned," they would have to admit how truly silly their NAKEDLY UNSUBSTANTIATED ASSERTIONS are.

  • Ted S.||

    Nobody's forced to talk, so therefore there's no reasonable expectation of free speech?

  • anon||

    Speaking might hurt someone's feelings. Can't have that.

  • Snark Plissken||

    Same reason rapescanners are legal at the airport. No one's making you fly.

  • Jordan||

    Tulpa's a 5th Circuit judge?

  • Snark Plissken||

    Okay, this made me laugh.

  • Francisco d Anconia||

    Third party doctrine is a fucking perversion of 4A.

  • R C Dean||

    Here's the weakness in the NJ position:

    "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. We therefore find that individuals have a reasonable expectation of privacy in the location of their cell phones under the State Constitution."

    Once you've been told they will be used that way, your expectation of privacy is no longer reasonable and has been vaporized. By a mere pronouncement from the government.

    Privacy shouldn't be based on "expectation", as expectations are subject to revision by the government that privacy is supposed to be a bulwark against.

  • BakedPenguin||

    OT: The Vikings let him down one last time.

  • Jayburd||

    That's how curses start.

  • Jquip||

    "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."

    The world knows by now that everyone's phone line is tapped and that full records are made of the calls. By the NSA. Even the Presidents. So by this, then no one in the US has an expectation of privacy about anything that crosses the wire. Including every state secret.

    So any Officer Friendly can just waltz into any Federal office and confiscate every file and computer on the basis that he thinks the US President broke the law, right? After all, he's got a rubber stamp on his Oath or Affirmation about cause.

  • PaulW||

    So, it seems like Edward Snowden and Julian Assange should have all charges against dropped. The government doesn't have a reasonable expectation of privacy, since they shared such information with a third party.

    Amirite?

  • James Anderson Merritt||

    What if the government were to call your bluff, and offer to drop all of those charges, on the basis of establishing, once and for all, that nobody should expect privacy in electronic communications, ever. Would you (or anyone) buy Snowden's and Assange's freedom at that price?

  • Paul.||

    Why is Jacob Sullum on my cell phone?

    Jacob... are you there? Psst, Jacob, all those models are at least 18 years old.

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  • Pathogen||

    "which holds that people have no constitutional right to privacy with respect to information they voluntarily share with others."

    Explain that to intellectual property owners, when they forbid reverse engineering and dissemination of released software and audio/video media...

  • Will Nonya||

    I can wait to see that in all the carriers ads.

    Buy a phone, disclose your locaction data, what have you got to hide...

  • ||

    The theory that you waive privacy rights by giving information to a third party or by engaging in voluntary activity is dangerous -- where do you draw the line?

    There are places in the US where you cannot get landline phone service -- If the people who live there want to talk to people in ways other than in person or call 911, they need to have cell phones. Have they waived their rights?

    If you send a letter through the US Postal Service, have you waived your rights by entrusting your communications to a third party? Past case law says no, but recent case law seems to indicate that you have.

    If you go to the store to buy food, most stores track who buys what. Eating is a requirement of survival, but the tracking data is in the hands of a third party. Do you have a right to privacy or have you waived it by choosing voluntarily not to starve?

    People die without water and it's just about impossible to get water without tripping over the government or a corporation in some way -- Whether it be a permit to dig a well, laws against collecting rain water or paying a water bill to the local water company, you are putting your data in third party hands.

    So where does it end?

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