Yes, That Is a Spy in Your Pocket: Federal Appeals Court Approves Warrantless Cellphone Tracking


On Tuesday a federal appeals court ruled that police do not need a warrant to obtain historical location data from cellphone companies because the Fourth Amendment does not protect such information. The U.S. Court of Appeals for the 5th Circuit concluded that the Supreme Court's "third party doctrine," which holds that people have no reasonable expectation of privacy in information they voluntarily disclose to others, applies to cellphone geolocation data, despite the wealth of personal details they can reveal. That means such records have only as much protection as Congress or state legislatures choose to provide. The 5th Circuit's decision comes less than two weeks after the New Jersey Supreme Court ruled, based on the privacy clause of that state's constitution, that police generally do need a warrant to obtain cellphone location data. This is the first time a federal appeals court has squarely addressed the issue.

Under the Stored Communications Act, law enforcement agencies can obtain court orders requiring production of cellphone records based on "specific and articulable facts showing that there are reasonable grounds to believe" the records are "relevant and material to an ongoing criminal investigation." Under the Fourth Amendment, the standard for a search warrant is stricter: "probable cause" to believe that evidence of a crime will be discovered. The case heard by the 5th Circuit involved three applications for court orders covering two months of cellphone location information for specific customers. The court was asked to decide whether the "specific and articulable facts" standard is constitutionally deficient.

No, it is not, the court decided, because the Fourth Amendment does not apply to cellphone location data, which are just another example of the "business records" that the Supreme Court has said can be perused by the government at will in the absence of statutory restrictions. After all, the court reasoned, people should know by now that connecting their wireless calls requires transmitting their locations to their cellphone companies. Since no one is forced to use a cellphone, 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.

According to this logic, people are not allowed to share information with others for limited purposes and still retain Fourth Amendment protection against government snooping. It's all or nothing. Buy a cellphone, and you automatically consent to having the government track your every move (except when prohibited by statute). You cannot opt out. And once this line of reasoning catches on, it will become a self-fulfilling prophecy, since people living under a government that has such broad surveillance powers cannot reasonably expect that their comings and goings will remain private.

The 5th Circuit's decision sits uneasily with U.S. v. Jones, the 2012 decision in which the Supreme Court said tracking a suspect's car by attaching a GPS device to it amounts to a "search" under the Fourth Amendment. 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. If you have a reasonable expectation of privacy in the whereabouts of your car for the last month, surely you have a reasonable expectation of privacy in the whereabouts of your cellphone for the last two months. The 5th Circuit declined to draw that inference:

[Supreme Court] precedent, as it now stands, does not recognize a situation where a conventional order for a third party's voluntarily created business records transforms into a Fourth Amendment search or seizure when the records cover more than some specified time period or shed light on a target's activities in an area traditionally protected from governmental intrusion. We decline to create a new rule to hold that Congress's balancing of privacy and safety is unconstitutional.

Justice Sonia Sotomayor's concurring opinion in Jones, calling upon her colleagues to reconsider the always questionable and increasingly alarming third party doctrine, is looking more perceptive every day. That doctrine makes not just cellphone location data but all sorts of remotely stored information, which nowadays includes a tremendous amount of sensitive material, vulnerable to government snooping unless legislators decide otherwise.

You can read the 5th Circuit's ruling here. Ron Bailey pondered the surveillance potential of cellphones in the January issue of Reason. Last year I asked, "Is That a Spy in Your Pocket?"

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  1. Um, first?

    Under the Stored Communications Act, law enforcement agencies can obtain court orders requiring production of cellphone records based on "specific and articulable facts showing that there are reasonable grounds to believe" the records are "relevant and material to an ongoing criminal investigation.

    Lovely. Law enforcement gets to decide what is pertinent. Now do we define "specific and articulable facts" the way a normal person would or do have to use cop-speak where that term becomes much more nebulous?

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      1. I'll take any job that continues to pay me after I've been fired.

        1. I looked into it more deeply and I found that apparently what happened is that she was laid off five years ago and no one ever told her about it; but through some kind of glitch in the payroll department, she still gets a paycheck.

          1. -salt in the margarita

  2. Why do the police require a warrant for medical records, but not for this? Both include a third party. So does a lawyer-client relationship for that matter. Why can't my contract with the phone company have language that grants me the same consideration?

    1. I'm guessing it has to do with a long tradition of privileges in the attorney-client relationship that date back hundreds of years.

      Cell phone companies weren't around at the founding so obviously the founders didn't protect them. Just like they didn't protect your use of non-musket firearms, and freedom of speech on the "internet."

  3. Since no one is forced to use a cellphone, 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.

    And that information belongs to my service provider. I contract with my provider to protect my information. So the owner of said data can tell the government to fuck off, get a fucking warrant IAW 4A.

    The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

    I don't see anything in there about expectation to privacy or third parties. The things covered under 4A are whatever the individual decides he doesn't want the government to have. Fucking property rights, how do they work?

    1. But can the service provider refuse the government's orders to hand over information?

      Verizon could fight for my privacy, but those days at court will surely cost them. And if the information they withheld could have theoretically saved lives, they'll lose in the court of public opinion.

      You know what they say about Chinatown.

      1. Yeah, but its one thing if my service provider *voluntarily* provides the data I've entrusted them with. That's something that can be dealt with through contracts.

        Right now, they don't have the option at all.

      2. But can the service provider refuse the government's orders to hand over information?

        I don't know, can you tell the cop at your front door that he can't come on your property until he has a warrant?

        1. How can I make that demand, if the cop isn't obligated to show me a warrant to search my house?

          I thought the whole point of this ruling was to enable the police to extract records from service providers without a warrant. Unless I'm missing something.

  4. "Reasonable expectation of privacy". Given what we are learning about government surveillance, is it reasonable to expect you have any privacy whatsoever? I think we need a new standard.

  5. Did anyone hear that San Francisco is threatening to use eminent domain to seize home loans? Usually reason is all over anything E-domain.

    1. Well, they did post on it yesterday

  6. The "Third Party Doctrine" is bullshit. Data voluntarily surrendered by me to another is still data that is 'owned' by me and that party. I would say that there is no automatic expectation that that third party will not share data with another (including government) but the government should not have the ability to coerce that third party into turning over that data *non-voluntarily* without a warrant.

    By the logic of the court - if I live in an apartment, the police can get warrantless access to an apartment simply due to the fact that I allow the maintenance man to come in when I'm not around, or could search my car because I let someone clean the interior.

    1. Or, now that I think of it - the lawyer/client and doctor/client relationship is out the door too.

      1. And this whole thing is doubly bullshit since there's a ton of data government at various levels *require* you to divulge to third parties.

        You can't get a bank account without providing a tax ID and street address for example.

    2. This.

      4A has nothing to do with privacy. It's about search and seizure. Which means it's about property rights. The claim that because a third party has access to data that the government can demand that data from an entity that doesn't want to give it to them without a warrant is complete and utter cock.

      If they can obtain the data through passive sources fine, let them. But going to my provider and telling them that they can take THEIR data because I entrusted them with it is about the dumbest argument I've ever heard.

      This fucking government is out of control!

  7. There's an opportunity here for someone to make a business out of selling cellphone-sized Faraday cages.

    1. Or cellphone-carrying homing pigeons.


  9. Since no one is forced to use a cellphone, 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.

    Why does anyone *need* a cellphone?

  10. I think it would be simpler for the courts to let us know precisely what they think the Fourth Amendment does protect.

    1. Sorry, PL -- that's classified.

    2. It's a set so small you'd need String Theory mathematics to describe it.

      1. Ah, so it's only visible in some microscopic 8th dimension that probably doesn't really exist, is that what you're telling me?

  11. Does this mean we can require judges to have tracking devices and put the information on the internet so that the public can know where they are at all times?

    1. It's reasonable. Since they're the guardians of our freedoms, we need to be able to contact them immediately when our freedoms are threatened.

    2. We should make it a law that all government officials have to be chipped and tagged throughout their tenure. No exceptions.

  12. Land of the free and home of the brave: You must be one real dumb-ass to believe that laugh line.

    1. There are posters here who are more loyal to the American Reich than to liberty and a free society. They be less than.

  13. And this oh so conveniently comes about after they force all cellphones to have geolocation through the enhanced 911 bullshit.

  14. Soooo, we have no right to privacy huh. Seems there is some inconsistancy there.

  15. This is quite frightening for the cloud data firms such as Dropbox, etc. They are "third parties." Therefore, the government can subpoena them for your files without a warrant, even if those files contain proprietary, privileged, trade secret, or other confidential information?

    The state bars need to take the lead on this an make clear that private accounts held by third parties do have reasonable expectations of privacy via their contracts and that those are protected from search without a court order and privilege attaches.

    This whole third party doctrine was a poorly thought out distinction based in 19th century technology. If information is in your custody or control then it is yours. Whether a safety deposit box, icloud, or in your cell phone or cell phone account with your provider. I doubt anyone wanted to make that information public.

    And the reasonable expectation of privacy standard is a non sequitur. Because the government has destroyed privacy you no longer have it? Put that into an excel sheet and watch the universe implode.

    1. I agree. I got new cell phones for my wife and myself yesterday. At one point, we had to agree to a EULA for voice control. I skimmed most of it, but paid particular attention to the privacy provisions. For the most part, that section of the agreement empowered the company to share data among its subsidiaries and partners. While I saw that as potential privacy leak, the real one was what I ended up calling the "we get to throw you under the bus" clause, because it basically said the company could release its information on you to the government -- without a warrant! -- if it were in the company's best interests.

      I think that personally identifiable/associated information that a company acquires about you through your voluntary transactions with them (or as a result of sharing with another company) should never be disclosed to government without a warrant, period.

      EFF or some other similarly interested parties would do the world a favor to draft up a standard privacy clause for EULAs that leaves no doubt that users expect and can count on privacy while using a company's products and services, or otherwise dealing with the company. They can then give the EFF seal of approval to companies who adopt that privacy clause without amendment or abridgement that weakens the privacy protections. People should simply stop doing business with fascist collaborators or enablers, but they need a way to tell who is who.

  16. Is there a business opportunity for a cell-phone or internet provider that actually refuses to release ANY records, especially personally targeted ones, without a warrant, and perhaps which makes it easy to use strong cryptography to encode and decode data or calls? I realize that the obvious government approach to such a business would be to try to tie it to drugs, organized crime, or terrorism and then shut it down as a menace to society, just as alternative currency concerns have been shut down (or at least pressured heavily) as "money-laundering" operations. But isn't finding a defense that sticks against such legal attacks what lawyers get paid to do, and so wouldn't the cost of litigation (all the way to the Supreme Court, we can only hope) be simply one component of the cost of doing business? Is privacy of enough value to Americans (and others) that we would pay to secure it, in large enough numbers as to allow one or more enhanced-privacy carriers to profit in the marketplace?

    1. Add to the cost of doing business the cost of preventing, repealing, or overturning stupid laws that allow government to collect data without a warrant.

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