Judge Nixes Warrantless Cell Phone Location Data

Front page first-timer poena.dare writes "The government sought warrantless access to 113 days of location data for a Verizon Wireless customer. On Monday, a judge refused the request (PDF), ruling that cell phone users have an expectation of privacy in location information. 'There is no meaningful Fourth Amendment distinction between content and other forms of information, the disclosure of which to the Government would be equally intrusive and reveal information society values as private,' said Judge Nicholas Garaufis. Privacy advocates in DC will be cheering as soon as they climb out from under their desks!"

Comments

Re:Big Whoop

[icebike]

Lock tight rules for suing corporations?

You are joking, right? The law provides EXACTLY the opposite:

(e) No Cause of Action Against a Provider Disclosing Information Under This Chapter.— No cause of action shall lie in any court against any provider of wire or electronic communication service, its officers, employees, agents, or other specified persons for providing information, facilities, or assistance in accordance with the terms of a court order, warrant, subpoena, statutory authorization, or certification under this chapter.

In the present case, they had two choices, seek a warrant, or notify the subscriber in advance if they used any lesser means (court order, administrative subpoena, etc). They apparently tried tor the lesser means and got denied. You wonder why they just didn't go for the warrant, since the criteria are almost exactly the same.

This was a telemarketing fraud case apparently, because that's all that 18 U.S.C. 2703(c)(l), (d) deals with.

From the opinion:

[Oxford_Comma_Lover]

The implication of these facts is that cellular service providers have records of the
geographic location of almost every American at almost every time of day and night. And under
current statutes and law enforcement practices, these records can be obtained without a search
warrant and its requisite showing of probable cause.

What does this mean for ordinary Americans? That at all times, our physical movements
are being monitored and recorded, and once the Government can make a showing of less-thanprobable-
cause, it may obtain these records of our movements, study the map our lives, and learn
the many things we reveal about ourselves through our physical presence.

...

[opinion quotes a dissent by judge Kozinski] "The Supreme Court in Knotts expressly left open whether twentyfour
hour surveillance of any citizen of this country by means of dragnet-type law enforcement
practices violates the Fourth Amendment's guarantee of personal privacy. When requests for
cell phone location information have become so numerous that the telephone company must
develop a self-service website so that law enforcement agents can retrieve user data from the
comfort of their desks, we can safely say that such dragnet-type law enforcement practices are
already in use. This is precisely the wrong time ... to say that the Fourth Amendment has no
role to play in mediating the voracious appetites oflaw enforcement."

...

The Maynard court noted two important distinctions between the short-term surveillance
in Knotts and the prolonged surveillance at issue in Mavnard. First, the court concluded that
while the individual in Katz did not have a reasonable expectation of privacy over his location
while traveling from one place to another, the individual in Mavnard had a reasonable
expectation of privacy over the totality of his movements over the course of a month. The court
reasoned that the totality of one's movements over an extended time period is not actually
exposed to the public "because the likelihood a stranger would observe all those movements is
not just remote, it is essentially nil." Mavnard, 615 F.3d at 560. Second, the court concluded
that people have an objectively reasonable expectation of privacy in the totality of their
movements over an extended period because an individual's privacy interests in the totality of
his movements far exceeds any privacy interest in a single public trip from one place to another.

...

there are circumstances in which the legal interest
being protected from government intrusion trumps any actual belief that it will remain private.
In such cases, society's recognition of a particular privacy right as important swallows the
discrete articulation of Fourth Amendment doctrine in Smith [indicating information conveyed to third parties is no longer protected by the Fourth Amendment] As addressed below, the court
concludes that the "normative inquiry" envisioned in Smith is required here, and it preserves the
reasonable expectation of privacy in cumulative cell-site-location records.

Tracking cell phone locations in real-time

[Laerien]

Gov't has been tracking cell phone locations without a warrant for years. There are quite a few cases on the books, and they represent only a tiny portion of those that are requested and denied. Check out this law review 'recent development' article from 2006, back when they were first doing this.

Re:SOoCS

[e9th]

This particular judge is an interesting guy. He is reported to have sentenced a woman to indefinite jury duty for answering the question, "name the three people you least admire," with "African-Americans, Hispanics and Haitians."