Police Don't Need a Warrant To Track Your Disposable Cellphone

New submitter Blindman writes "The Sixth Circuit Court of Appeals has held that it is okay for police to track your cellphone signal without a warrant. Using information about the cell tower that a prepaid cell phone was connected to, the police were able to track a suspected drug smuggler. Apparently, keeping your cellphone on is authorization for the police to know where you are. According to the ruling (PDF), '[The defendant] did not have a reasonable expectation of privacy in the data emanating from his cell phone that showed its location.' Also, 'if a tool used to transport contraband gives off a signal that can be tracked for location, certainly the police can track the signal.'"

Comments

Must have been small time...

[gatfirls]

...To fit the drugs in his phone. Or he had an 80's brick phone?

Re:So it begins

[game kid]

The first?

So it ends

[gatfirls]

...our reasonable expectation of privacy and the experiment of civil liberties. The sad thing is that we have lost a lot of them to "aid in fighting" un-winnable and/or lost wars.

Re:So it ends

[jxander]

Worst part is, I can already see how the government might address the issue ... Cell phone (and other hardware) manufacturers will be required to include a sticker on the packaging, or maybe just a footnote in the instruction manual that states : "This device complies with FCC regulation 42.x and emits location tracking data that can be collected and used by law enforcement. Ownership of this device implies acceptance of government tracking and anal probing in compliance with .... " etc etc etc

In fact, it might already be there. I sure as hell haven't read all my fine print.

Re:So it ends

[profplump]

Use of radio (or other shared infrastructure) is not equivalent to broadcasting. Cell phone communications are, by law, only allowed between the service provider tower and the subscriber handset and a nontrivial effort is taken to secure that unicast communication against eavesdropping.

Re:So it ends

[chill]

It does NOT broadcast your location to everyone within 45 miles. GSM, for example, encrypts the signal. Details about whom the signal belongs to and what it contains are between the subscriber and the service.

What this ruling is about isn't "other people", it is the State conducting a surreptitious search without a warrant. The nature of the radio transmission and the encryption give me a reasonable expectation of privacy.

Re:So it ends

[jamstar7]

So you're saying you advocate security through obscurity, rather than making the systems that use that information more secure by design such that I could publish those things and not worry?

More like, "That's nifty technology. Why can't you be bothered to get a warrant to use it for law enforcement purposes?"

Re:So it ends

[Jane Q. Public]

"Also, 'if a tool used to transport contraband gives off a signal that can be tracked for location, certainly the police can track the signal.'"

This ruling pre-supposes that contraband is being transported. In fact there is no way to know that for sure until AFTER an arrest. So this is a completely specious argument.

It would be like him ruling that police can look in the trunk of your car anytime they want, because you "might be" transporting drugs or something. It's a completely bogus argument.

Re:So it ends

[Anguirel]

On the contrary, I'm in favor of requiring the warrant for this. I'm saying the argument that privacy is necessary because there is currently danger in the release of SSN, CC#, and so on is security through obscurity. That's not a good argument for needing to retain privacy.

Writs of Assistance

[rolfwind]

http://en.wikipedia.org/wiki/Writ_of_assistance

In general, customs writs of assistance served as general search warrants that did not expire, allowing customs officials to search anywhere for smuggled goods without having to obtain a specific warrant. These writs became controversial when they were issued by courts in British America in the 1760s, especially the Province of Massachusetts Bay. Controversy over these general writs of assistance inspired the Fourth Amendment to the United States Constitution, which forbids general search warrants in the United States. In the United Kingdom, general writs of assistance continued to be issued until 1819.[6]

General writs of assistance played an important role in the increasing tensions that led to the American Revolution and the creation of the United States of America. In 1760, Great Britain began to enforce some of the provisions of the Navigation Acts by granting customs officers these writs. In New England, smuggling had become common. However, officers could not search a person's property without giving a reason. Colonists protested that the writs violated their rights as British subjects. The colonists had several problems with these writs. They were permanent and even transferable: a writ holder could assign them to another. Any place could be searched at the whim of the holder, and searchers were not responsible for any damage they caused. This put anyone who had such a writ above the law.

Idk, but between border control, the patriot act, and the drug wars, it seems to me that e have a whole lotta writs of assistance in this here "free" country.

Re:What is the point

[Baloroth]

"did not have a reasonable expectation of privacy in the data emanating from his cell phone that showed its location."

Sounds pretty damn reasonable to me, I mean you are literally broadcasting who, where and what you are saying, all one need do is listen.

Talk about a non-story. It's not a real scandal like Obama eating dog or anything.

So, where are the publicly available devices capable of tracking this signal. I'm waiting for it, because I have a few senators, congressmen, and judges I think should be tracked 24/7. After all, they don't have any reasonable expectation of privacy, do they? And therefore they should be able to be tracked using the cell phone, right? Note: this isn't entirely a joke, I honestly think people should find a way to track lawmakers and judges if this decision doesn't get overturned. Obviously, the decision should be overturned, but if not, that would be a good way to insure a law protecting such information is enacted.

Of course people have a reasonable expectation of privacy for that data. It isn't publicly available, and in fact the police had to request it from the cell phone company. Just because you can track someone using it quite easily does not mean they do not have an expectation of privacy.

Re:Why does "reasonable expectation" matter?

[JohnFen]

You'd better be, because if not, then there is no real privacy for anyone ever.

The legal system doesn't know that he was doing anything illegal until after he's convicted of it. Up until then, he's presumed innocent, but accused of doing something illegal. It may seem like a fine distinction, but it's a critically important one.

To say that someone doesn't get their privacy rights because they're breaking the law is to say that cops get to decide someone's guilt or innocence -- which they don't get to do. Judges get to do that in a court of law. Under existing law, a judge can make this sort of determination during the investigatory phase: it's called "issuing a warrant".

From TFA:

[CanHasDIY]

"Perhaps the most important single statement in the ruling refers to the fact that there is no Fourth Amendment violation in use of these techniques because there is no reasonable expectation of privacy in the voluntary use of a voluntarily bought phone--even one that is pay-as-you-go," [said Nick Selby, managing director of TRM Partners]

Emphasis mine; let's apply that "logic" to other "voluntary" purchases, and see if it passes the smell test...

there is no reasonable expectation of privacy in the voluntary use of a voluntarily bought house
there is no reasonable expectation of privacy in the voluntary use of a voluntarily bought automobile
there is no reasonable expectation of privacy in the voluntary use of a voluntarily bought pair of pants

Yup, smells like bullshit to me.

Hmmm... it'll probably get overturned

[sirwired]

This decision seems incompatible with the GPS tracking decision, which said a warrant was required for GPS tracking. IIRC, the GPS decision didn't key off the fact that the cops had to plant a transmitter, they based the decision off the idea that it was really creepy. This seems to be an identical level of creepiness.

Re:What is the point roxy

[Anonymous Coward]

Police cars are usually broadcasting radio signals as well. Is it OK if I create an app that shows the real-time position of any police vehicles that are identified? Should be. Fairly easy to overlay on a google map. It is no different than seeing one drive down the street and then telling someone. We could make a web version that serves from another country to protect it from a take down. I'm gonna put this up over on kickstarter.

Re:So it begins

[TheGratefulNet]

stallman is crazy, in some ways; but he was RIGHT that we are carrying 'involuntary tracking devices'. and we even PAY for them, out of our own pockets!

its not really 'tinfoil', anymore, to want to remove your battery when the phone is not in use. (not sure what apple fans to, but normal phones can at least have their battery taken out easily and on-demand).

Two big differences

[pavon]

1) The phone wasn't broadcasting data that the police happened to notice. They had the phone company send the phone commands querying it for it's precise precision (this is a feature that is required by law to be in phones for the purpose of e911). So this was an active search, not a happenstance observation.

2) Because this isn't a signal that just anyone can monitor, but rather one that requires explicit cooperation of the phone company to generate and access, people have a reasonable expectation of privacy regarding that signal.

Those two facts essentially are the definition of when a search that requires a warrant.

Re:So it begins

[RajivSLK]

Whether the EM waves you are emitting are visible or not makes no difference.

Yes it does. What if a device is invented that can detect the minute changes in gravity that occur when an object moves about. Lets assume that by using this device the police could reconstruct a 3d rendering of an entire city include all the people in it and what they are doing. Does that sound like a good idea?

Whether your cellphone signal can be tracked without a warrant is not a technical issue. It's a philosophical, moral, societal, political and legal question.