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DOJ: We Don't Need a Warrant To Track You

Posted by Soulskill on from the well-we-don't-need-a-warrant-to-fire-you dept.

GovTechGuy writes "The Department of Justice maintains it does not need a warrant to track an individual using location data captured from their cellphone. 'Cellphone location records are currently lumped under Title 1 and Title 2 of the 1986 Electronic Communications Privacy Act (PL 99-508), which cover stored communications and call details. Accessing those types of information typically requires only a court order, rather than a warrant, as is required for the contents of a phone call or digital message under Title 3.' That has prompted Maine and Montana to pass laws banning warrantless cellphone tracking; unfortunately, Congress doesn't appear close to doing the same."

12 of 259 comments (clear)

  1. Then maybe it's time for some new laws... by ducomputergeek · · Score: 4, Insightful

    Ones that say that yes they do need a warrant. Meh, who am I kidding these days...

    --
    "The problem with socialism is eventually you run out of other people's money" - Thatcher.
    1. Re:Then maybe it's time for some new laws... by ackthpt · · Score: 5, Insightful

      Ones that say that yes they do need a warrant. Meh, who am I kidding these days...

      No! You are right, we should be fighting for our rights and these secret courts and massive intelligence gathering on the people is nothing short of what the Gestapo was engaged in back in .... ooo, is that a new Samsung GS4 Active?!? Shiny! Want!

      [NO CARRIER]

      --

      A feeling of having made the same mistake before: Deja Foobar
    2. Re:Then maybe it's time for some new laws... by Mashiki · · Score: 5, Insightful

      Ones that say that yes they do need a warrant.

      I think you've got that one covered already, it's called the 4th amendment. Too bad you guys have spent decades deciding that the Constitution is a 'living breathing document' instead of a foundational document which is immutable. And you have politicians who now run with that, and instead of laws being challenged against the document for a breach against the people, you use the mass of interpretations, and fine legal hair splitting so you get screwed over.

      --
      Om, nomnomnom...
    3. Re:Then maybe it's time for some new laws... by Anonymous Coward · · Score: 5, Insightful

      Warrants are meaningless.

      1. the feds just go to their secret rubberstamp court to get them
      2. this case https://en.wikipedia.org/wiki/Illinois_v._Gates made them a joke since an LEO can get one by claiming an anonymous tip.

      Here is how things happen now. Cops and feds use any kind of intrusive and illegal surveillance they want. Then if they don't like you for whatever reason get a warrant based on either national security or an "anonymous tip". Then they kick down your door, rough up your family, ransack your house, shoot your dogs (and you if you dont lick their boots or if they were just having a case of mondays). Then go to court claiming they found evidence which was really obtained through the illegal methods they used earlier.

      Then even if they get caught doing something blatantly illegal there is never any meaningful penalty for the individuals involved. At worst the taxpayers of the municipality pay out a settlement that is trivial compared to the total budget, most of which goes to the lawyers and not to the people who were wronged.

      We currently live in a police state because no practical limitations to the powers of the police.

    4. Re:Then maybe it's time for some new laws... by MozeeToby · · Score: 3, Insightful

      Constitution trumps it anyway. The courts have already said that you can't have free speech without anonymity, I think there's an obvious argument to be made that you can't have freedom of assembly without anonymous movement. And that's even ignore the whole search and seizure thing. Apparently what we need is an amendment to specifically call out privacy, because the 1st, 4th, and 9th are not cutting it these days.

    5. Re:Then maybe it's time for some new laws... by Proteus · · Score: 4, Insightful

      The 4th Amendment requires due process of law to conduct a search, and Congress has the power to define what that due process looks like. In the case of "stored data", they've decided that "due process" only requires a court order.

      Any 4th Amendment argument that a court order isn't sufficient due process is inherently one of interpretation regarding the intent of the 4th Amendment. This is one of the many reasons why the EFF is making a 1st Amendment challenge to the NSA's accessing of such metadata. The NSA followed established due process (they went to a FISC court and got a warrant), so there's no 4th Amendment claim really (unless you want to argue that the 4th's provisions were not intended to be satisfied by a secret court -- but again, that's interpretation).

      The living breathing document doctrine is not saying that the text of the Constitution is mutable, but that rather as society changes, our interpretation of what it means changes too. This has caused some problems, but it's also the root of a lot of good things, like the decision that the guarantee of "Freedom of speech" extends to all forms of expression.

      --
      We may not imagine how our lives could be more frustrating and complex—but Congress can. – Cullen Hightower
    6. Re:Then maybe it's time for some new laws... by msauve · · Score: 4, Insightful
      Their position is most likely based on Smith v. Maryland (5-3), which allowed the warrantless use of pen registers.

      However, pen registers only record the time, length and number called by the person being monitored. Cell phone records greatly expand the types of data gathered, adding location, incoming numbers (CID/ANI), types of "calls" (voice/SMS/data).

      In Smith v Maryland, they ruled out applying the 4th for a few reasons:

      (a) Application of the Fourth Amendment depends on whether the person invoking its protection can claim a "legitimate expectation of privacy" that has been invaded by government action. This inquiry normally embraces two questions: first, whether the individual has exhibited an actual (subjective) expectation of privacy; and second, whether his expectation is one that society is prepared to recognize as "reasonable." Katz v. United States, 389 U. S. 347. Pp. 442 U. S. 739-741.

      With regard to privacy expectations, they found:

      (b) Petitioner in all probability entertained no actual expectation of privacy in the phone numbers he dialed, and even if he did, his expectation was not "legitimate." First, it is doubtful that telephone users in general have any expectation of privacy regarding the numbers they dial, since they typically know that they must convey phone numbers to the telephone company and that the company has facilities for recording this information and does, in fact, record it for various legitimate business purposes. And petitioner did not demonstrate an expectation of privacy merely by using his home phone, rather than some other phone, since his conduct, although perhaps calculated to keep the contents of his conversation private, was not calculated to preserve the privacy of the number he dialed. Second, even if petitioner did harbor some subjective expectation of privacy, this expectation was not one that society is prepared to recognize as "reasonable." When petitioner voluntarily conveyed numerical information to the phone company and "exposed" that information to its equipment in the normal course of business, he assumed the risk that the company would reveal the information to the police, cf. United States v. Miller, 425 U. S. 435. Pp. 442 U. S. 741-746.

      One significant difference these days is that most cell phone carriers have explicit, contractual privacy policies, which do provide a reasonable expectation of privacy (the ruling does address assumptions of privacy, but not explicit promises). And, different from that ruling, the caller does not voluntarily expose location information to the phone company. If one chooses not to have CID (or has no choice), they are not voluntarily exposing calling party information.

      --
      "National Security is the chief cause of national insecurity." - Celine's First Law
    7. Re:Then maybe it's time for some new laws... by b4dc0d3r · · Score: 5, Insightful

      The only time law enforcement needs a warrant is when the only person or organization that has a copy of the data says "no, you need a warrant".

      If you have a vehicle, house, or letter, and law enforcement asks if they can look about, and you say yes, you just waived your rights. If someone has your data, regardless of whether you think it belongs to you or not, and law enforcement asks to see it, that someone can say yes and they just waived their rights. Because someone else has a copy of your data, they can waive *your* rights.

      The problem here is really about how hard a group has to push back. With a National Security Letter, or visit from an agent, or any request other than a warrant, someone has to first say "no" to the request.

      The 1986 Electronic Communications Privacy Act only comes into play in these situations. I think it's important to consider that all of this hand-wringing is nowhere near the total number of requests that require hand-wringing.

  2. Re:Dear DOJ by c0lo · · Score: 3, Insightful

    vote for the first presidential candidate who promises to rock your world

    *crickets*...*crickets*...

    --
    Questions raise, answers kill. Raise questions to stay alive.
  3. Re:We live in a police state. by boorack · · Score: 3, Insightful

    I'm not sure it is possible anymore. Those fucks just obtained right to jail citizens for indefinite time without court order (NDAA injunction has been struck down by Obama's cronies in 13 circuit, and good lock with SCOTUS). US of A 2013 reminds me Germany 1936. Scary times ahead...

  4. Re:Dear DOJ by CanHasDIY · · Score: 5, Insightful

    Dear DOJ:

    And WE don't need a warrant to vote for the first presidential candidate who promises to rock your world and make sure your out of control ass gets curbed, and to prosecute everyone who failed to honor their pledge to UPHOLD THE CONSTITUTION. In fact maybe the NSA doesn't even need to exist. We won WW2 without you.

    Sincerely,
    voting citizens who have a clue and a care

    Tried it, didn't work - remember "Hope and Change?" Hell, not only did dude fail to uphold his campaign promises, the motherfucker doubled-down on anti-Constitutional activities!

    Don't feel bad, I voted for the bastard once myself.

    --
    An enigma, wrapped in a riddle, shrouded in bacon and cheese
  5. What use is a law in the face of power? by SlithyMagister · · Score: 3, Insightful

    Since governments in general disregard laws with impunity, what difference can it possibly make to pass laws requiring warrants? They will do what they are going to do anyway. The existence of a law will not change this behaviour. The powerful are not constrained by laws, only the weak.