Fourth Amendment

Federal Court Puts Limits on Cellphone Tracking

Privacy advocates gain key victories in high-profile battle

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The GOP debate Thursday set viewership records for an obvious reason: One never knows what Donald Trump, the loose-lipped real-estate mogul might say. But many analysts believe the most significant exchange was when New Jersey Gov. Chris Christie and Kentucky Sen. Rand Paul sparred over warrantless searches by the National Security Agency.

Christie argued for giving officials the "tools" to collect data. Paul shot back: "You get a warrant." The issue centers on the Fourth Amendment, which offers the public protection against "unreasonable searches and seizures." The matter goes far deeper than presidential politics, as such cases wind their way through the courts.

Neither candidate mentioned a relevant federal ruling late last month in the U.S. District Court covering Northern California. Officials sought the right to track suspects' Cell Site Location Information, or CSLI, for 60 days without gaining a warrant. Such location information lets law enforcement track the whereabouts of our cell phones in relation to cell towers.

According to the court, "(m)ost modern smart phones have applications that continually run in the background, sending and receiving data without a user having to interact with the cell phone." This gives investigators a vast amount of information about the people they are tracking.

In its amicus brief calling for the warrant requirement, the American Civil Liberties Union of Northern California quoted from a 2010 federal ruling: "A person who knows all of another's travels can deduce whether he is a weekly churchgoer, a heavy drinker, a regular at the gym, an unfaithful husband, an outpatient receiving medical treatment, an associate of particular individuals or political groups".

Unfortunately, case law over this particular issue of cell phone tracking has been less than clear. Government officials note the wireless companies include disclaimers stating that they might turn over such data to the government, which they believe to be sufficient warning to the public.

The U.S. Supreme Court has dealt with cell phones and privacy, but the CSLI tracking information is a newer matter. Nevertheless, Judge Lucy Koh recounted various federal rulings and found some basic principles apply: Notably, "the expectation of privacy is at its pinnacle when government surveillance intrudes on the home"; long-term surveillance efforts undermine privacy; and cell phones aren't just phones — they "can reveal a wealth of private information about an individual."

The government argued the public can avoid their surveillance by not using a cell phone. But Koh rejected that argument: "Considering the ubiquity of cell phones, and the important role they play in today's world, it is untenable to force individuals to disconnect from society just so they can avoid having their movements subsequently tracked by the government."

She ruled that the government needs a warrant — and not just a court approval, which is based on lower standards of proof. Warrants require probable cause.

In a previous California high-court case, the state's justices had ruled that a cell phone was not fundamentally different from a cigarette pack in granting police officers unlimited power to search them. That was overturned by the U.S. Supreme Court in a 9-0 decision. Obviously, there's a huge difference between searching a cigarette pack for hidden drugs and tapping into all of a person's contacts and databases in a modern cell phone.

Fortunately, as technology advances so too are courts' — and legislatures' — understanding of these matters. "Statutory laws need to be updated for the modern world," said ACLU attorney Nicole Ozer, because "law enforcement is taking advantage of these outdated laws to get information."

When the Legislature returns from session, it will revisit the California Electronic Communications Privacy Act (SB 178), which is moving forward on a bipartisan basis. It sets consistent standards for the government's access of all electronic communications. It specifically addresses the CSLI matter, and would require police agencies to obtain a warrant before tracking Californians' whereabouts via their cell phones.

So clearly the courts and laws are continuing to address the issue, with Koh's ruling the latest example that the Paul position might be winning the day.

NEXT: Kentucky federal court: government clerk must do her job and issue marriage licenses

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  1. **Before I begin: I am a hardcore libertarian/voluntaryist. I reject entirely the moral or rational basis for the existence any State, or for the initiation of force/violence (NAP)**

    This decision is wrong. Entirely. It is in the same cargo-cult tradition as luddism or protectionism, except in that it’s “reasoning” and conclusions run counter to the interests of entrenched State/Crony interests rather than for them.

    It is wrong because you do NOT have a magical right to the privacy of crap which you are BROADCASTING ON A FUCKING RADIO ANTENNA 24/7

    What you DO HAVE is:

    1) A right to ENCRYPT that data as hard as you want to.
    2) STOP BROADCASTING (turn the device off or disable the sending of data you wish to remain private)

    But you do NOT have a magical right to prevent someone from “overhearing” the stuff you broadcast (plaintext or encrypted) and then decyphering it.

    I can speak languages other than English. If I am in a crowded public area in Tijuana I can be reasonably secure in expecting that nobody unwanted will understand me if I shout some sensitive information in Russian to a friend at the other end of the bar. Just like if I broadcast encrypted sensitive data from a phone or other device.

    But in both cases, I have no right to prevent someone from understanding if they overhear and happen to be able to interpret it. All I have the right to do is not to shout out loud, and instead wait for a face-to-face private talk or withhold the transmission entirely

    1. Do you believe the same is true of conversations had from your home over POTS line?

    2. There is a difference between overhearing an unusually loud comment in a bar and making a secretive effort to listen to a conversation that is reasonably expected to be private.

    3. What you’re saying is roughly the same as saying that the police can enter your home anytime you leave a window open. Leaving your stuff unguarded is not the same as saying anyone can take it. It’s still auto theft if you leave your keys in the car and it’s still an invasion of privacy if law enforcement uses cell phone data without a warrant.

    4. The data in question are not being obtained by listening in on open airwaves. CSLI data are maintained by cell phone providers, which provides them with a customer’s past location records. This information is gleaned from the signals sent by the customer’s cell phone to the carrier’s cell phone towers but it is collected by phone companies. The issue is not whether or not the phone companies can collect it, or even whether police can collect it; the issue is can the police rummage through the CSLI data that are maintained by the cell phone providers without a warrant (and without going through the trouble of collecting it from the airwaves themselves). It is a different thing than what you are describing.

    5. **Before I begin: I am a hardcore libertarian/voluntaryist. I reject entirely the moral or rational basis for the existence any State, or for the initiation of force/violence (NAP)**

      Uh huh. Using disclaimers are akin to a “but,” and therein what is said next negates the statement(s) made prior. And that was a doozy of a negation.

  2. Now America is defenseless against terrorists and ISIS will overrun our borders in no time.

    1. Jeb, you need to build a wall!

      1. And when that’s complete, we can require all citizens to produce their national ID car on demand…

        1. Obviously, duh, how else can the DHS Agents verify you are not a member of ISIS who got past the wall ? Papers Please !!!!!!

        2. Once we chip everybody, these problems will go away.
          It would be much easier to track people, so there should be much less crime.
          Everyone will be happy.

  3. So clearly the courts and laws are continuing to address the issue, with Koh’s ruling the latest example that the Paul position might be winning the day.

    Cool, so any day now I can expect amy police force that uses fake cell phone towers to be put under control of a federal judge, the massive NSA database in Utah to be sold for warehouse space, and all the officials who participated in the unconstitutional programs to face charges, right? Right?!?

  4. Rand Paul won on the facts and on the law. Unfortunately, in the eyes and ears of the public that watched the debates Christie won big and Paul lost big. Security defeated the Constitution by an overwhelming majority.

    Mencken was right. No one ever went broke by underestimating the intelligence of the American people.

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