A divided appellate court panel in Richmond, Virginia, ruled on Wednesday that citizens do not give up their privacy rights just because their mobile-phone providers know where to reach them.
The decision is the strongest assertion of the Fourth Amendment rights of mobile phone users out of three appellate court decisions on the matter, setting up a likely Supreme Court hearing.
“The tide I think is turning,” said Hanni Fakhoury, a senior staff attorney with the Electronic Frontier Foundation, which joined a friend-of-the-court brief in the case of Aaron Graham, a man convicted of armed robbery after his cell phone location information over seven months was obtained by the government from Sprint.
The Fourth Circuit Court of Appeals ruling rejected the “third party doctrine,” a legal theory that private information held by a company is not protected by the Fourth Amendment’s prohibitions against unreasonable search and seizure.
The ruling acknowledged the prevalence and advancement of technology in our lives. “People cannot be deemed to have volunteered to forfeit expectations of privacy by simply seeking active participation in society through use of their cell phones,” the court wrote.
“It’s great for us going forward,” says Nate Wessler, a staff attorney with the American Civil Liberties Union’s Speech, Privacy, and Technology Project.
“It’s a robust recognition of how much private information can be revealed through our cell phone records — doctor’s office visits, AA meetings … in the aggregate, it paints a strong picture of our lives.”
Wessler said a Supreme Court hearing on the case is now more likely.
In fact, the Fourth Circuit decision calls for it. The panel split 2 to 1, with one judge finding for the government.
Writing for the majority, Judge Andre Davis wrote: “If the Twenty-First Century Fourth Amendment is to be a shrunken one, as the dissent proposes, we should leave that solemn task to our superiors in the majestic building on First Street and not presume to complete the task ourselves.”
In addition to tracking American citizens via their cell phones and GPS devices, the U.S. government’s spy agencies (FBI, CIA, etc) have another tracking method when an individual does not carry a cell phone and/or GPS device. They can track an individual/target by employing private contractors and citizen volunteers (Infragard, private investigators, etc.). The government agencies can track the cell phones of these participants as they perform vehicle and pedestrian surveillance of a target. This allows government satellites to track an individual without a cell phone or tracking device in a moving grid at all times.
Darren M.
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Ya think?!
To be brutally accurate, the court ruled that the choice offered in the Stored Communications Act between a warrant and a court order must be made as interpreted to require a warrant if Cell Site Location Information (CSLI) is going to be obtained over the long term. They did not rule that all uses of a court order instead of a warrant for CSLI were unconstitutional, just broadening the order to the long term as opposed to specific information about specific crime dates.
They didn’t rule anything “unconstitutional”. That’s the job of the Supreme Court. The law provides two options to obtain information, they ruled that only the warrant option may be used for long-term CSLI — in this particular case, the 7 month court order should have been a warrant. They made a point of saying it was a different kind of order and needed a different kind of 4th amendment scrutiny from the 15 day order the government obtained initially.
It may seem like nitpicking but the distinction is very real. If there were cameras on the roads at stop lights or stop signs, for instance, nobody would argue that they needed a warrant to obtain footage of the car used going between robberies. But surveilling them for several months no matter what they were doing with the same cameras would definitely require a warrant. And that’s pretty much what they said, except that in this case the cameras are cell towers and the video is connections established.
What are your thoughts and feelings on the use of DNR/pen register as opposed to T&T warrants vis a vis Stingrays and the like?
With respect to this case? The decision did talk about the level of detail available from a data source and its relevance to the warrant test. Given that argument, which is well argued, stingrays need a warrant.
We agree then. Cool. :) I guess the question I have, then, is if a warrant is required, but other peoples’ data also winds up being intercepted to get to the person (in case of roaming tap) or device (in case of non-roaming) that’s ostensibly the target of the ‘search’, how can such a warrant be applied Constitutionally? One would need to have an IMSI/IMEI and only be able to lock onto that particular device (or set of devices), yes? But that’s not my understanding of how Stingrays work… I’m trying to figure out how Stingrays can be considered Constitutional (according to search and seizure rules) even with a (obviously non-blanket) standard, regular (even federal) court-signed-off-on warrant?
I don’t know enough about how Stingrays work to even talk about that. But there is, and the case points it out, a tacit acknowledgement of no expectation of privacy for some things, and a tacit expectation of privacy for others. If the Stingray is being used for surveillance, then minimization procedures are supposed to suppress information about people who are not under surveillance.
If somebody, on the other hand, is doing something out in public, as the expression used to say, “in front of god and everybody” then they don’t have a right to demand a warrant to look at them.
But as the Court said, if the time span when attention was focussed on them in public is long, or the level of detail of that attention and acquisition of data is high, then they may have a right to expect a warrant because that isn’t consistent to just doing something in public anymore.
“nobody would argue that they needed a warrant to obtain footage of the car used going between robberies.”
Nobody would argue that, or nobody would argue with it?
I might argue that. Setting aside that warrants are supposed to be for specific data—unless the cameras in question are owned by the police, they should always have to get a warrant.
The traffic cameras at the intersections? You’re saying that if they are owned by the DMV instead of the police they need a warrant? What about the state police, who are part of the same organization as the DMV?
And you want warrants “for specific data” too. Let’s see, does that mean that the wearable body camera on the policeman’s chest can film, but that same policeman needs a warrant to look at it, or does it mean that the policeman has to get a warrant before turning it on, that is specific to the actions of each person it is going to be capturing on “film”?
I know everybody here thinks of themselves as the vanguard of civil rights, but believe it or not, you do not have a civil right to total secrecy while in the act of committing a crime. That’s not, and never was, what the founders had in mind for the 4th amendment. You have a right to not be surveilled, you have a right to require a warrant for unreasonable searches and seizures. You don’t have a right to demand a total video and information blackout during the crime to protect your privacy, and inhibit any evidence from accruing during the commission of the crime.
But maybe it’s worth a try. You have my full attention to your upcoming writeup if you decide to walk up to a cop and tell him to shut off the body cam, because you’re about to hit him in the face, and he needs a warrant to photograph you doing that. Of course, if the cop has a blog, he’s also a journalist, and he can video you no matter what the fuck you are doing and publish it, so there may be competing 1st and 4th amendment interests.
Maybe we can arrange a tourist vacation service to take Intercept commenters around to imminent scenes of crimes and emergencies so they will know what they actually are before they comment?
@ondelete-” you do not have a civil right to total secrecy while in the act of committing a crime. That’s not, and never was, what the founders had in mind for the 4th amendment. ”
I reject, and others should as well, the premise of your comment. I believe you are apart of the government in some way, are you? Currently, in this country, being convicted of a crime doesn’t mean a crime was committed by that person. The rate of incarceration and violations of civil rights by the government was ” not, and never was, what the founders had in mind.” If a person is correctly convicted of a crime, that doesn’t mean their civil rights no longer apply. Our rights are INALIENABLE. ” Scenes of crimes and emergencies ” are just that a ” scene.” People like you, Governor Chris Kristi (I don’t care if I misspelled his name) and others use ” scenes ” like 9/11 to move forward with alienating people from their rights, and effectively doing it in ” secrecy.”
What’s missing from your comment, and strongly suggesting your apart of it, is that the government operating in ” total secrecy ” is ” not, and never was, what the founders had in mind. ”
That ” secrecy ” form of government is absolutely un-American.
Maybe you should take a ” tourist vacation ” to find a new country to live in. A country where people can’t choose to live a secret life and where an abstract ” scene ” triggers the government to operate as Nazis because I guarantee you that our Nazi government will not continue in perpetuity.
This could have large impacts on the ongoing Google “right to disappear” case, too.
“Blacklisting” is the greatest harm to most Americans and what most journalists (and judges) don’t really understand.
In blacklisting cases, government agencies and their subcontractors dish out punishment to Americans – without the knowledge of the citizen targeted. In other words these “color of law” crime victims can’t file a police report or contact any watchdog agencies since they are never confronted. Bureaucrats like it because they can dish out extrajudicial punishment (including assassinations) with little to no risk of criminal prosecution. It is used to punish things like legal Freedom of Speech exercises.
It’s the biggest government crime wave nobody talks about or really understands and the greatest danger of warrantless electronic tracking.
???? Absolutely correct
“Blacklisting” is to put it mildly.
It’s copied by US Agencies from East Germany STASI. No-Touch Torture.
Should be: “… a man convicted of armed robbery after his cell phone location information over seven months was obtained without a warrant by the government from Sprint.”
I have reading comprehension issues….. Where does this put “stingray”????
Dear Judge Andre Davis:
Wake the fuck up! Pay closer attention to “the spying game”.
DirecTV spy network $104.72 pymt. 4/4/15. DirecTV spy network $109.24 pymt. 7/4/15. “ATT and DirecTV having completed merger” ATT/DirecTVspynet $113.09 8/4/15?
How explicitly did they stop on the third party doctrine? That theory is at the heart of a lot of big problems with modern privacy law.
*** “People cannot be deemed to have volunteered to forfeit expectations of privacy by simply seeking active participation in society through use of their cell phones,” the court wrote. ***
This decision must not be allowed to stand! It makes far too much logical sense and is too respectful of basic human liberty. Everyone knows that the “inalienable rights” on which America was founded really only refer to “rights that are inalienable unless their infringement can be argued to advance security or a ‘compelling government interest.'”
/[angry_sarcasm]
Like currency, privacy is a mass illusion that relies on everyone else equally respecting its value, it is can be suspended, manipulated or crash at any time. Technology swiftly eroded privacy’s value, just as it did for easily-duplicated songs. Snowden saved our privacy currency from collapse, and got us all to think about its true value. It will take time, and case after case like this one, brought to a deliberative judiciary by concerned citizens, to eventually have its value re-established to where we collectively think it should be.
“It will take time, and case after case like this one, brought to a deliberative judiciary by concerned citizens, to eventually have its value re-established to where we collectively think it should be.” I don’t think it would be that easy, if you are on this site than you know the lengths that this country would go to protect it’s interests.
I don’t think we have *time* for case after case. It’s clear that if it’s not stopped now, or at least very very soon (if it’s not too late already) it’ll be virtually impossible to shut it down at all; the tech keeps advancing and being built INTO our other tech. That’s what worries me.
Which is to say, it’s not a ‘people problem’ it’s also a ‘tech problem’ and how people interact with tech and let it define their lives. I generally believe almost any ‘purely a people problem’, even ‘mostly a people problem’ (not totally one) can be dialed back. I don’t believe that’s the case when it’s not a *person* problem – – which is to say, if individuals, even groups of individuals, cannot change a problem, then generally speaking, it’s very very difficult to turn back, especially when entities, power and money are involved.
‘Case after case’ feels to me like ‘they’ve got the lawyers and the money to buy the time to get more entrenched and become even more of a ‘norm”.