Fourth Amendment

That Tracking Beacon You Call a Cell Phone At Issue in Florida Case

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Your cellphone isn't just good for texting friends, playing Flappy Bird, listening to music, checking the weather, and ignoring your mother's calls (you assigned her number Darth Vader's theme music, right?). It's also a very efficient tracking beacon for following your movements from place to place. Now, that's multitasking!

It's especially efficient when cops don't go through the hassle of getting a warrant before following your daily routine. But pleasingly paperwork-free though that approach may be for police departments, it's more than a bit creepy. The American Civil Liberties Union (ACLU) argues that it's also unconstitutional, in a Florida case now before the 11th Circuit Court of Appeals.

In terms of the details of the case, the ACLU presents a handy summary:

In 2010, the government obtained four people's cellphone location records over a 67-day period in a criminal investigation in Florida, without a warrant.

For one suspect, Quartavious Davis, police got 11,606 location records—an average of 173 location points each day. After Mr. Davis was convicted at trial based substantially on the cellphone location evidence, he appealed to the Eleventh Circuit Court of Appeals. The ACLU, along with the ACLU of Florida, Center for Democracy & Technology, Electronic Frontier Foundation, and National Association of Criminal Defense Lawyers, has filed an amicus brief arguing that the government violated the Fourth Amendment when it obtained Mr. Davis's location records from his wireless carrier without a warrant.

Think about the details of your life the location of your cellphone can open to scrutiny. Do you want each and every place you've been to be trackable through casual scrutiny, with no burden of proof required?

"Your cellphone location records can reveal extraordinarily private information about you, including where you go to the doctor, who your friends are, and where you sleep at night," Nathan Freed Wessler, staff attorney with the ACLU Speech, Privacy, and Technology Project, told the court.

Hell. Keeping where you sleep at night private is half the reason you screen your calls to begin with.

Along those lines, the amicus brief argues that "Americans have a reasonable expectation that they will not be subject to long-term and constant surveillance of their movements."

So, if the cops want to know where you've been, they should have to satisfy Fourth Amendment requirements for getting a warrant.

Ron Bailey reported in December that following your cellphone has become a popular law enforcement pastime.

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  1. and ignoring your mother’s calls (you assigned her number Darth Vader’s theme music, right?).

    My mom died when I was 19. I sincerely hope yours sticks around annoying you for a long time.

    1. I’ve made mother jokes to a friend whose mother died fairly recently before without thinking about it. I felt like a big douche, but fortunately he was good humored about it.

      A friend of mine had the Darth Vader music for his mom’s ringtone for a while. In that case it was very appropriate.

  2. Well, would cops have to get a warrant to actually place a device on you to track you?

  3. Thus the “reasonable expectation of privacy” doctrine rears its ugly head. The courts thanks to that doctrine have adopted the completely outdated idea that any information you turn over to a third party is no longer covered by the 4th Amendment and can be obtained without a warrant. That is bullshit.

    The location records are no different than business records or a diary. Imagine if I created my own GPS tracker and tracked myself everywhere I went and that data was stored on my home computer. Could the cops get that without a warrant? Hell no. It is not any less private because a third party does the tracking for me as part of my cell phone service.

    1. What do you have to hide? Huh? HUH?

    2. That whole line of thinking is absurd. Besides, a company that I’ve contracted with to do it likely has some obligation to protect the privacy of that information. That’s not even remotely close to making that information public. If it were, the NDAs, trade secrets, and God knows what else wouldn’t “private.”

      1. If it were, the NDAs, trade secrets, and God knows what else wouldn’t “private.”

        And why would you give them even more ideas (that they probably already had anyway).

        1. The government is going to continue to further erode our rights until there are consequences to government and to government officials for doing so. But, by all means, keep electing the people who keeping beating us on the head with a wrench.

      2. Absolutely. Imagine I am a salesman and one of my competitors called up my cell phone company and they gave him all this information and he used to to poach my customers, I am pretty sure I would have a cause of action for breach of contract against my cell phone company.

        Any court with even a modicum of respect for the 4th Amendment should bitch slap the government over this case.

        1. It seems pretty straightforward, but never underestimate the capacity of judges to do legal gymnastics to justify government overreach.

    3. Why do phone companies keep track of your location data? They don’t give a damn where you are, or have been, so why are there records of this at all?

      1. Because they can sell it.

    4. That’s the real problem isn’t it. Why can a business be compelled to give up any kind of business record without a warrant?

      If Sprint tracks my whereabouts for purposes of network management and quality control, then those are Sprint’s private records (not mine). I only have an interest if Sprint and I have a privacy agreement saying they won’t share this information with 3rd parties.

      But even in that interpretation, Sprint should be able to tell the cops to fuck off if they don’t have a warrant, because Sprint’s records are company private data.

      1. And handing it over without a warrant is both illegal and a breach of contract.

        1. I would think so since we do have a privacy agreement as part of the T&Cs; of the service.

          1. I’m sure that’s standard. They also likely have a privacy policy in general that limits their right to share PII. Law enforcement exceptions usually require a valid process of law.

            1. valid process of law.

              p a t r i o t – a c t

            2. And FYTW

              1. Indeed. Constitutional Law must be a much easier class these days.

                1. Just a quaint document covered in Freshman history.

    5. Fuck “reasonable expectation”. The government’s resources are incomparably different. They just need to be honest about what it says, the Government doesn’t get to gather evidence from our private possessions without a warrant.

      1. You know, why can’t superaliens give me a power ring so I can fix things here? I’d be a great and benevolent Green Lantern.

        1. Not me, I’d attempt to destroy everyone who wants to control what other people do by force. Benevolence would not be my epithet.

          1. You can create a new race of Manhunters to do this for you!

            I’m not entirely sure how much the Guardians would approve, though.

    6. The 4th amendment does not prohibit this. It’s not a search or seizure of anyone’s person, home, papers, or effects, even with the broadest definition of “papers” imaginable, and that’s before we get to determining reasonableness.

      The ACLU is basically making a 9th amendment “right to privacy” argument so the “reasonable expectation of privacy” consideration is relevant.

  4. If I had unlimited funds, I’d get some PIs to use those stringray devices and follow every single judge on the case and present it to them before the rule. Then see how they would rule on “reasonable expectation”

  5. The problem is the precedent from the seventies where almost this exact thing happened. http://en.wikipedia.org/wiki/Smith_v._Maryland

    1. That’s the pen register case, right? Not quite the same as employing a tracer without a warrant.

      1. But I can see them saying it’s the same. It’s just phone metadata collected by the phone company. No warrant necessary.

  6. I don’t see why phone companies keep track of GPS data at all, unless they’re mandated to keep it by the government. If they’re not mandated, we should start “Liberty Bell Telecom” and explicitly NOT track this data, so when the cops come asking we can sorry, file not found. We’ll have millions of customers by this time next month. If the record keeping is mandated, then the government is essentially saying owning a cellphone is consent to have the government track your every movement.

    1. There are a boat load of business and technical reasons why a network provider wants to keep track of when and where portable devices connect to their network: bandwidth and capacity management; quality of service; billing; etc.

      The issue isn’t that the service provider keeps these records. The issue is the service provider is giving them to the cops without a warrant.

      1. Oh, I completely understand that they’d want records of which devices are connected to which cell towers. Network management and capacity planning would be pure guessing without it. But the way this article reads, they’re not saying my phone is somewhere within 1.5 miles of tower 27B/6, they’re instead keeping records of pinpoint GPS locations. It’s those pinpoint locations that I can’t see a reason for them to keep.

        1. Eh. Once they’re keeping the phone unique ID and ALL of their tower data, it probably saves data to just keep the GPS ping, rather than correlate three plus towers to figure out where people are.

        2. It’s those pinpoint locations that I can’t

          An angry customer calls to bitch about drop-outs . . . you want to know where they phone was at.

          Before GPS, you could only triangulate a general position when the the phone was in range of more than one cell tower.

          And engineers always want all the data that available, it’s a weakness 😉

        3. Ah, OK. That makes more sense. Thanks, fellas.

  7. So is that GPS really on even when the phone is off?

    I just got a cell phone for the first time a few weeks ago (and have yet to make or receive a call on it). Now I just want to throw it away again.

  8. Wanna fuck with whoever is following you on GPS? At the first stop sign from where you live pull the battery and don’t put it back in until you get home.

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