Fifth Circuit Upholds Warrantless Cellphone Location Tracking

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Fifth Circuit Upholds Warrantless Cellphone Location Tracking

Posted by Unknown on Wednesday July 31, 2013 @02:13AM from the cops-concerned-you-never-leave-home dept.

First time accepted submitter mendax writes "The New York Times is reporting, 'In a significant victory for law enforcement, a federal appeals court on Tuesday said that government authorities could extract historical location data directly from telecommunications carriers without a search warrant. The closely watched case, in the United States Court of Appeals for the Fifth Circuit, is the first ruling (PDF) that squarely addresses the constitutionality of warrantless searches of historical location data stored by cellphone service providers. Ruling 2 to 1, the court said a warrantless search was 'not per se unconstitutional' because location data was 'clearly a business record' and therefore not protected by the Fourth Amendment.'' The article pointed out that this went squarely against a New Jersey Supreme Court opinion rendered earlier this month but noted that the state court's ruling was based upon the text of the state's constitution, not that of the federal constitution."

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LOL Corporations! by Qzukk · 2013-07-31 02:15 · Score: 2

the court said a warrantless search was 'not per se unconstitutional' because location data was 'clearly a business record'
Not a person when the federal government feels like it.

--
If I have been able to see further than others, it is because I bought a pair of binoculars.
1. Re:LOL Corporations! by blcamp · 2013-07-31 02:22 · Score: 5, Insightful
  
  This has nothing to do with the concept of "corporate personhood", whether you agree with it or not.
  This is a 4th Amendment issue. Searches and seizures of anything are protected for personal effects and papers. Electronic records are arguably that, but this court did not agree. It needs to be settled by SCOTUS.
  
  --
  The problem with socialism is that they always run out of other people's money. - Margaret Thatcher
2. Re:LOL Corporations! by Anonymous Coward · 2013-07-31 02:28 · Score: 0
  
  Proof that the government only sees corporations as citizens.
  The US is run like an Ancient Greek Polis where only citizens have a higher status than non-citizens, such as women, slaves or barbarians.
  Just substitute women, slaves and barbarians with "We the people".
3. Re:LOL Corporations! by Anonymous Coward · 2013-07-31 02:28 · Score: 2, Insightful
  
  RIght, but if corporations are people, then their business records are clearly "personal effects and papers," no?
4. Re:LOL Corporations! by jittles · 2013-07-31 02:32 · Score: 2
  
  RIght, but if corporations are people, then their business records are clearly "personal effects and papers," no?
  IANAL but that's exactly what I was thinking. You can't have your cake and eat it, too. So I guess someone in that jurisdiction needs to start suing their mobile provider to get them to delete all this location data once their bill has been paid. After all, they need the location data for billing purposes. Once the bill has been settled, they no longer need those records, only the settled invoice itself. And since I prepay, have unlimited everything, and have no roaming capabilities, there is no need to keep any location data whatsoever. Hmm...
5. Re:LOL Corporations! by pixelpusher220 · 2013-07-31 02:45 · Score: 4, Interesting
  
  While the ruling is troubling on a number of levels the concept itself is fine.
  
  A 'business record' whether held by an individual or a corporation (person or otherwise) is a '3rd party' record and as such isn't protected by YOUR 4th Amendment rights. It would be no different if you paid your neighbor to record your movements and they asked them for your data.
  
  That said, the troubling aspects are we've made the jump from business records (how the business runs its operations) to user generated records housed and recorded by the business. The law makes no distinction, but the latter has massive privacy implications.
  
  I suppose if there were truly a free market (I hate that word btw) we'd have entries into the mobile wireless business doing what VPNs have for a while. I.e. no logging 'at all'.
  
  If the gov't in any way compels a business to keep records (and there lots of valid reasons for this) then those records are not considered 'business records' and need applicable warrants, etc.
  
  --
  People in cars cause accidents....accidents in cars cause people :-D
6. Re:LOL Corporations! by Redmancometh · 2013-07-31 02:49 · Score: 1
  
  Please no. I know how they'll vote and it will create an absolute prescedent.
7. Re:LOL Corporations! by Greyfox · 2013-07-31 02:50 · Score: 3, Insightful
  
  It NEEDS to be EXPLICITLY settled by Congress. With clear language the courts can't ignore. Congress as a whole only understands one thing and that's the risk to their jobs.So until they start losing them over stuff like this, nothing much will get done. Until then if you don't like being tracked every waking moment, you'll have to not carry a cellphone or leave the battery out of it unless you need to make a call.
  
  --
  I'm trying to teach myself to set people on fire with my mind... Is it hot in here?
8. Re:LOL Corporations! by camperdave · 2013-07-31 03:17 · Score: 1, Interesting
  
  By extension, the records of a Private Investigator following someone are clearly a business record as well. So the cops can just hire PIs to follow suspects around, record their conversations, etc. without search warrants. Sigh! Why bother with a constitution at all?
  
  --
  When our name is on the back of your car, we're behind you all the way!
9. Re:LOL Corporations! by camperdave · 2013-07-31 03:18 · Score: 1
  
  RIght, but if corporations are people, then their business records are clearly "personal effects and papers," no?
  The amendment doesn't work if the "person" willingly hands their data over.
  
  --
  When our name is on the back of your car, we're behind you all the way!
10. Re:LOL Corporations! by GodfatherofSoul · 2013-07-31 03:32 · Score: 1
  
  That will NEVER happen any time soon since as soon as the next terrorism incident happens, anyone who any way voted against any surveillance program will be hoisted up on a pike in the next election.
  
  --
  I swear to God...I swear to God! That is NOT how you treat your human!
11. Re:LOL Corporations! by Anonymous Coward · 2013-07-31 03:43 · Score: 0
  
  After all, they need the location data for billing purposes.
  No, they don't.
  Unless they intend to bill you differently depending on what state you were in but then the location data doesn't need to be more detailed than that.
  The are storing more data about you than they need to.
12. Re:LOL Corporations! by Anonymous Coward · 2013-07-31 03:43 · Score: 0
  
  Yeah but unless I am a business, I am not generating business records. So what the does the fact that they are business records have to do with MY records? Unless the government counts me as a business for some reason. I think that's the point.
13. Re:LOL Corporations! by Nerdfest · 2013-07-31 03:52 · Score: 1
  
  The surveillance is one thing, doing without any oversight is another. It needs to done with a warrant.
14. Re:LOL Corporations! by pixelpusher220 · 2013-07-31 04:12 · Score: 1
  
  The point is the type of 'records' doesn't matter except in very very specific cases. If it's held by a 3rd party, you don't have grounds to invoke the 4th Amendment.
  
  --
  People in cars cause accidents....accidents in cars cause people :-D
15. Re:LOL Corporations! by Anonymous Coward · 2013-07-31 04:12 · Score: 0
  
  RIght, but if corporations are people, then their business records are clearly "personal effects and papers," no?
  Corporations are not people, and the courts have never ruled that they are. That's a pile of misinformation spread by people who have a limited understanding and reactionary "news" services looking for a sensational story.
  The court ruling that spawned this particular pile of tripe actually ruled that it's the speech which is protected, regardless of whether it's coming from a person or a corporation.
  As for this particular discussion, there are two issues. First is whether or not it's constitutional for the government to scoop up large amounts of data... this ruling only regards a State-level constitution so it doesn't really mean much right now. The second issue, which has been completely ignored so far, is that phone companies who are giving up this information without being presented with a warrant or court order are in direct violation of CPNI regulations. (search the FCC's government site for details).
16. Re:LOL Corporations! by 10101001+10101001 · 2013-07-31 05:15 · Score: 2
  
  A 'business record' whether held by an individual or a corporation (person or otherwise) is a '3rd party' record and as such isn't protected by YOUR 4th Amendment rights. It would be no different if you paid your neighbor to record your movements and they asked them for your data.
  Except that makes no sense (not surprisingly). Again, the text of the 4th Amendment: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." Notice how the wording consistently uses plurals or groups? The idea that by dividing the people effected you can get around the 4th Amendment is about as preposterous as stating that because the 4th Amendment constantly uses plurality that no individual is protected from unreasonable searches and seizures. Clearly that's not how the wording is being used.
  Another big canary that's often missed is no part of the 4th Amendment gives exception just because the government otherwise demanded, required, or paid that information be turned over. Ie, the wording of the 4th Amendment seems pretty clear that even *if* by some twisted logic they compelled or bribed your neighbor to hand over your data, they'd *still* need a warrant to search it. The government, after all, is not a person and all those inherent truths--like what you legally possess you can legally search--don't inherently hold true. And the 4th Amendment clearly spells out that if there's a valid reason to do a search, the government can clearly get a warrant to do a search and follow that path. The whole idea that by compelling or paying people/businesses to get around that exception is absurd on the face of it, as clearly the intent of the 4th Amendment was precisely that ordinary, average people should be "secure in their persons, houses, papers, and effects, against unreasonable searches and seizures". But, then, courts just love illogical loopholes.
  
  --
  Eurohacker European paranoia, gun rights, and h
17. Re:LOL Corporations! by ShanghaiBill · 2013-07-31 05:22 · Score: 1
  
  After all, they need the location data for billing purposes.
  Many people prepay for their minutes. For those customers there is no business reason for the telco to be collecting this information.
18. Re:LOL Corporations! by Jane+Q.+Public · 2013-07-31 05:36 · Score: 1
  
  "After all, they need the location data for billing purposes."
  I would argue over whether they even need this much... to a degree anyway.
  
  On a typical plan, all they need to know is: "Is it 'native', or roaming?" and "Is it long distance, or local?"
  
  Because most plans only distinguish between home area and roaming, and long distance or local. And some unlimited plans do not even do that. Further, most cell plans don't even distinguish between local and long distance anymore, as long as it is within the U.S.
  
  So the location data in most cases can be broadened to simply "Were they in their home coverage area?" Which, for many providers, is a rather large percentage of the U.S.
  
  Yes, the nature of cell phones does require fairly specific location data at the time of call. But there is no user-specific need to retain those records.
19. Re:LOL Corporations! by Jane+Q.+Public · 2013-07-31 05:42 · Score: 1
  
  "While the ruling is troubling on a number of levels the concept itself is fine. "
  There is another aspect to it that is being ignored here, and by the court as well.
  
  Other courts (I don't have a specific citation at hand, but it's been in the news) have ruled that while collecting specific data may not be a search, aggregating data over time can constitute surveillance or a search subject to 4th Amendment protection.
  
  I think it is pretty clear that cell phone location data is aggregated over time, and can reveal things about one's life that even a direct search (or police "tail") might not do. So it seems pretty obvious to me that this kind of data is covered by that precedent, but this court ignored that.
20. Re:LOL Corporations! by Jane+Q.+Public · 2013-07-31 05:44 · Score: 1
  
  I should have adeed: this court seems to have been paying attention to the letter of the law, while ignoring the whole reason the 4th Amendment exists.
21. Re:LOL Corporations! by pixelpusher220 · 2013-07-31 05:47 · Score: 1
  
  Except for one problem. How do you classify data created and stored by Verizon as 'your' papers?
  
  The Constitution is vague on purpose...it's a feature not a bug.
  
  --
  People in cars cause accidents....accidents in cars cause people :-D
22. Re:LOL Corporations! by 10101001+10101001 · 2013-07-31 06:00 · Score: 1
  
  Again, you seem to be missing the point. It's irrelevant if it's "my" papers" or "your" papers. It's "the people"'s papers. Hence a warrant is necessary, regardless of who actually holds them.
  The only other point is what is an "unreasonable" search. But the problem is the courts have repeatedly taken the bottom up approach to justify about everything. That is, even though they know the NSA, police, or whoever are going to commit unreasonable searches enmass to whittle down a suspect list (instead of the other way around, to use a warrant to confirm a suspect), the NSA, police, or whoever will use very individual examples and argue those few, isolated incidents aren't unreasonable and hence a warrant isn't necessary. But that's the same logic that if a sign said, "Free cookies, but take a reasonable amount" and pointing at the free cookies part and how most people only take one or two and then taking 100. Clearly, trying to pin it all as a binary reasonable/unreasonable is just wrong thinking. And to err on the side of "people secure in their ..." should just demand a warrant with a possibility of the courts giving the clear after the fact that, if a warrant wasn't used, it would still be admissible evidence. That'd almost entirely pin most law enforcement to get a warrant regardless just because the risk of losing the case would be so great trying to argue on each individual case on why it was justifiable this one time.
  
  --
  Eurohacker European paranoia, gun rights, and h
23. Re:LOL Corporations! by Jane+Q.+Public · 2013-07-31 06:04 · Score: 1
  
  "The point is the type of 'records' doesn't matter except in very very specific cases. If it's held by a 3rd party, you don't have grounds to invoke the 4th Amendment."
  I disagree about whether that is "the point". I think the court is missing "the whole point" of the 4th Amendment. Remember that generally speaking, it is not the letter of the law that is important, but what the authors of the law meant when they wrote it.
  
  There are a couple of things that are pretty clear about this, given the realities of the day: (1) that this kind of electronic record is, for all intents and purposes, equivalent to "the papers and effects" envisioned when the 4th Amendment was written; and (2) these are essential parts of many people's daily lives without which they cannot function normally in society, not something you are "voluntarily" turning over to a 3rd party.
  
  The spirit of the law says this court was wrong. In fact this is precisely the kind of information that the 4th Amendment was created to protect.
  
  ---
  "The first and governing maxim in the interpretation of a statute is to discover the meaning of those who made it." -- James Wilson
24. Re:LOL Corporations! by enjerth · 2013-07-31 06:05 · Score: 2
  
  Because your personal data (the information which may indicate the position of your PERSON at a particular time and place) is constitutionally unprotected when it's possessed by a non-person entity? It's suddenly impersonal data?
  My right to be secure in my person (which extends to every time and place of my being, past, present and future) and effects is not violated by means of wresting that information unconstitutionally from a business? How is that not two offenses against the law?
  If the information sought were regarding that third- non-person "entity", or the business, would they have any right to demand the release of that data without a warrant?
  And how can they require you to keep records for their purposes? Isn't it against your 5th Amendment rights to compel you to record or give any testimony? When you make any accounting to the government you are potentially incriminating yourself. The "pre-crime" aspect of this does not in any way change the implications of what it means to be secure in my person.
  There is a narrow gap between this reasoning, and reasoning which gives them access to all your data held by third-party "entities". They can have all your passwords, too, with this wave of the hand.
  All your base are belong to U.S.
25. Re:LOL Corporations! by pixelpusher220 · 2013-07-31 07:09 · Score: 1
  
  And you need to brush up on the legal system. No 'warrant' is needed, only a subpoena - very different things. Warrants are for subjects of investigation. Verizon is not the subject of the investigation, you are, hence they get a subpoena to produce *their* data.
  
  You still haven't answered the question, how is the data that Verizon creates and stores somehow legally 'my' data?
  
  Our legal system is based on harm and jeopardy and if it isn't 'your' data you aren't in jeopardy. If it isn't Verizon's data, they aren't in jeopardy so have no grounds to object to it's subpoena.
  
  --
  People in cars cause accidents....accidents in cars cause people :-D
26. Re:LOL Corporations! by pixelpusher220 · 2013-07-31 07:13 · Score: 1
  
  Entirely agree with the 'spirit' of the law, but that's both the bane of the vague Constitution and it's best feature (living document).
  
  What the law currently doesn't differentiate between is 'business records' kept for operating a business and data that a user's actions caused to be created such as location histories (as opposed actual user generated content which is protected). That's the crux of the problem.
  
  --
  People in cars cause accidents....accidents in cars cause people :-D
27. Re:LOL Corporations! by pixelpusher220 · 2013-07-31 07:18 · Score: 0
  
  you say it's 'your data'. How so? I agree it *should* be, but it isn't in the current legal system.
  
  Because your personal data (the information which may indicate the position of your PERSON at a particular time and place) is constitutionally unprotected when it's possessed by a non-person entity?
  
  Uh, show me anything that says you can't be identified to a position at a specific time? It's simply not there.
  
  It's suddenly impersonal data?
  Nope. Not suddenly...the rest, as currently defined yes.
  
  My right to be secure in my person (which extends to every time and place of my being, past, present and future)
  
  --
  People in cars cause accidents....accidents in cars cause people :-D
28. Re:LOL Corporations! by perceptual.cyclotron · 2013-07-31 07:39 · Score: 1
  
  Hmmm.....
  
  A private corporation is included under the designation of "person" in the Fourteenth Amendment to the Constitution, section I.
  - Pembina Consolidated Silver Mining Co. v. Pennsylvania - 125 U.S. 181 (1888).
  
  Cue the AC's pedantic rebuttal that 'person' isn't the same as 'people' in 3, 2, 1...
29. Re:LOL Corporations! by Anonymous Coward · 2013-07-31 07:49 · Score: 0
  
  You still haven't answered the question, how is the data that Verizon creates and stores somehow legally 'my' data?
  
  I don't care about the legal aspects; to me, allowing the government to outsource its spying to corporations is morally wrong and foolish. I believe any data about you obtained by the government from businesses without warrants should be inadmissible in court; it doesn't matter whose data it truly is as this would be a limitation put upon the government and not anyone else.
30. Re:LOL Corporations! by enjerth · 2013-07-31 07:49 · Score: 1
  
  you say it's 'your data'. How so? I agree it *should* be, but it isn't in the current legal system.
  If my current location is unknown to the government, do they have any right to obtain that information without a warrant?
  Yes, that information may belong to another party which may divulge that information, which I may generally have no legal right to demand that they shield that information. But the assumption that the government may intrude on this relationship at will to impose it's demands, whether justified by time or distance, is simply unconstitutional. As far as the Constitution is concerned, this information is CLASSIFIED with respect to government accessibility. No warrant, no data.
  Or does my right to the right of my privacy from the warrantless intrusion of government expire upon the passing of a moment? Does that data become declassified, given time or distance? I don't think so.
  
  Uh, show me anything that says you can't be identified to a position at a specific time? It's simply not there.
  Show me anything that says that the government may demand testimony from someone regarding my position at any time, without a warrant? Is there anything?
31. Re:LOL Corporations! by cheekyjohnson · 2013-07-31 07:50 · Score: 1
  
  I agree it *should* be, but it isn't in the current legal system.
  Of course not. That would be inconvenient to those in power.
  
  --
  Filthy, filthy copyrapists!
32. Re:LOL Corporations! by pixelpusher220 · 2013-07-31 08:12 · Score: 1
  
  Google 'subpoena' but here's the definition from Wikipedia in case you'd rather just keep trolling along:
  
  A subpoena is a writ by a government agency, most often a court, that has authority to compel testimony by a witness or production of evidence under a penalty for failure. There are two common types of subpoena:
  
  subpoena 'ad testificandum' orders a person to testify before the ordering authority or face punishment. The subpoena can also request the testimony to be given by phone or in person.
  subpoena 'duces tecum' orders a person or organization to bring physical evidence before the ordering authority or face punishment. This is often used for requests to mail copies of documents to requesting party or directly to court.
  
  Read slowly so's you understand. I'll wait.
  
  --
  People in cars cause accidents....accidents in cars cause people :-D
33. Re:LOL Corporations! by pixelpusher220 · 2013-07-31 08:13 · Score: 1
  
  I don't care about the legal aspects
  Duly noted, we're done here then.
  
  --
  People in cars cause accidents....accidents in cars cause people :-D
34. Re:LOL Corporations! by enjerth · 2013-07-31 08:47 · Score: 1
  
  Umm, does the process for issuing a subpoena look anything like that for a warrant?
  For example, is it issued on the authority of a court of law? After evidence is submitted showing the legal reasoning for the issuing of said subpoena? For the purpose of hearing testimony concerning a particular real or perceived contest of law currently being reviewed in that court?
  How do you get from that to justifying warrantless, legally unsupervised raids on data at large? I really don't see any connection.
35. Re:LOL Corporations! by pixelpusher220 · 2013-07-31 09:36 · Score: 1
  
  Show me anything that says that the government may demand testimony from someone regarding my position at any time, without a warrant?
  You asked for 'anything' that said compelling testimony without a warrant and I gave it to you.
  
  Now you ask how you get to warrantless 'legal' wiretapping? Um, because they're using subpoenas which as we've discovered today are NOT search warrants.
  
  It ain't right or what I'd like the world to be, but that IS the world we live in. Subpoena's are perfectly valid tools for the legal system, but they've been expanded to allow everything under the sun and that's the problem. Not that they can compel you to testify about my location or anything else the court deems you need to speak to them about. That's rock solid basic justice system functioning. This of course assumes they aren't prosecutingj/investigating 'you' - at that time the other amendments come into play.
  
  --
  People in cars cause accidents....accidents in cars cause people :-D
36. Re:LOL Corporations! by rickb928 · 2013-07-31 09:45 · Score: 1
  
  But that's the crux of this. The police don't really have to 'pay for' all this location data. It;'s already collected, and the incremental cost is negligible.
  So they ask for it ONLY because it exists, and is EASY to get.
  One solution to this may be to make it cost-prohibitive for government to retrieve this data. Maybe set fairly low pricing on a limited number of retrievals, and then crank up the fees to both reflect the true cost of staffing the function, and most important, compensate ME for taking MY data.
  Unless my cell company asserts it is theirs, which they probably do, and then we can start the campaign to assert ownership. And that solves the Fourth Amendment problem, maybe.
  Again, another case of government doing it merely because it CAN, and it is technically feasible. We must either explicitly define this data as our own, or specifically limit government that refuses to apply the Fourth Amendment in our favor, but relies upon complex arguments and willing courts.
  We're stuck with all three branches of government working against our interests. Not good. Even one branch would be enough, but the courts are dominated by the Executive, and the Legislative is impotent. Doomed, I fear we are.
  
  --
  deleting the extra space after periods so i can stay relevant, yeah.
37. Re:LOL Corporations! by Jane+Q.+Public · 2013-07-31 11:00 · Score: 1
  
  Please read my tagline above; I disagree that it is, any popular sense, a "living document".
  
  Rather, it is a set of absolute rules intended to limit the power of Federal government. But "absolute" does not refer to an "interpretation" of the words; rather, it means that laws are to be followed in the way that the original writers intended. Not according to modern changed meanings of words or phrases, or in some way that a non-scholar might read them without knowing the history.
  
  The only sense in which the Constitution is "living", is in the sense that there is an already well defined method of changing if we want. That method is known as "amendment" and there are solid and well-established rules for amending it.
38. Re:LOL Corporations! by pixelpusher220 · 2013-07-31 11:33 · Score: 1
  
  Not according to modern changed meanings of words or phrases
  So you believe then that 'digital' documents have absolutely no constitutional protections?...since the founders clearly couldn't have meant what they couldn't imagine. You're 'papers' are secure, but don't type them in?
  
  --
  People in cars cause accidents....accidents in cars cause people :-D
39. Re:LOL Corporations! by enjerth · 2013-07-31 12:34 · Score: 1
  
  Subpoenas are subject to the same procedure and limits as the 4th Amendment provides for warrants.
  For the purposes of this argument, subpoenas have the same scope and limits as a warrant has, but merely for different purposes. Subpoenas do not give the government an end-run around 4th Amendment, but must be supported by the same standards as warrants are.
  Is that clear yet?
40. Re:LOL Corporations! by pixelpusher220 · 2013-07-31 13:09 · Score: 1
  
  Unreasonable in the case of the 4th means without due process, and as you've noted, subpoena's are part of due process. Hence, their simple existence doesn't make them unreasonable. Most times the court pays reasonable fees to the corporation/business to provide the records, because imposing the costs on them 'would' be unreasonable.
  
  Anywho, you're doing a fine job of trolling so I'll leave you to yourself.
  
  --
  People in cars cause accidents....accidents in cars cause people :-D
41. Re:LOL Corporations! by enjerth · 2013-07-31 13:49 · Score: 1
  
  I never said they were unreasonable, per se.
  http://www.nacdl.org/CHAMPION/ARTICLES/97jan02.htm
  A subpoena may not be issued to collect evidence for a pending case or to help a prosecutor prepare a case for trial.
  Neither may a subpoena be issued to collect evidence unrelated to the case.
  Such subpoenas would be unreasonable.
  Trolling? I asked for you to demonstrate something other than a warrant and you responded with a warrant, albeit one known principally by another legal term.
  A subpoena is a warrant to procure testimony, which may not be issued but by a court of law on the standing of sworn testimony describing the person(s) and things (the subject of testimony sought by the court) to be seized.
  There would be no other lawful way to seize a person for testimony. It is a warrant.
42. Re:LOL Corporations! by Jane+Q.+Public · 2013-07-31 14:29 · Score: 1
  
  No, big WHOOSH. You missed my point entirely.
  
  The important thing is what was meant, not the exact words. For example, a person's "papers" were their personal records. Today, a person's personal records can be their income tax returns, their emails, or their telephone bills (including location data).
  
  The whole purpose of the 4th Amendment was to prevent government from collecting this kind of data about people willy-nilly. That's the important part. It doesn't matter if it isn't printed on "paper".
43. Re:LOL Corporations! by Jane+Q.+Public · 2013-07-31 14:32 · Score: 1
  
  Pardon me. Income tax returns is a really bad example. But emails and phone records are good examples.
  
  But the concept that electronic records are considered part of a person's "papers and effects" has already been ruled by some courts.
So the Fifth doesn't uphold the Fourth by korbulon · 2013-07-31 02:19 · Score: 1

and the US courts drop another Brooklyn Third
Fourth Amendment by blcamp · 2013-07-31 02:19 · Score: 4, Insightful

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
- Fourth Amendment to the US Constitution
What? Emails, text messages and other electronic communications are not "papers", you say? Well, "electronic signatures" are taken as just as legal and binding as if it were an actual signature in ink on a piece of paper.
This needs to be taken to SCOTUS, extra pronto.

--
The problem with socialism is that they always run out of other people's money. - Margaret Thatcher
1. Re:Fourth Amendment by EmagGeek · 2013-07-31 02:23 · Score: 4, Informative
  
  You need to read the Commerce Clause and supporting case law, which says that anything having an effect on Interstate Commerce is a business record and not a "Paper" or personal effect.
  Bank Statements, emails, and so on, are all fair game.
2. Re:Fourth Amendment by operagost · 2013-07-31 02:27 · Score: 2
  
  And the fact that the decision was based on NJ law, not the US Constitution, still doesn't fly because the supremacy clause clearly holds, looking at both the 14th and 4th amendments. Claiming they're "business records" is stupid. Yes, they're business records. This just means that the business doesn't get to claim privacy rights to them. However, it's my information, so I do!
  
  --
  
  Gamingmuseum.com: Give your 3D accelerator a rest.
3. Re:Fourth Amendment by stewsters · 2013-07-31 02:29 · Score: 1
  
  So is anything that has crossed state lines. Don't live in a state with paper production? Well, there goes the rest of your papers too.
4. Re:Fourth Amendment by spire3661 · 2013-07-31 02:32 · Score: 1, Insightful
  
  Yes, but the commerce clause is utter bullshit as interpreted. WHile your argument may be legal, its still wrong and needs to be changed.
  
  --
  Good-bye
5. Re:Fourth Amendment by bill_mcgonigle · 2013-07-31 02:36 · Score: 1
  
  And the fact that the decision was based on NJ law, not the US Constitution, still doesn't fly because the supremacy clause clearly holds
  NJ is free to offer its citizens more protection than the General Government does - that doesn't constitute a conflict under the Supremacy Clause. Properly viewed, the Supremacy Clause only applies to the enumerated powers of the Constitution anyway - it should not even apply in cases where States' powers are being infringed, unless one of the Bill of Rights protections are being violated (we'll pretend the 9th and 10th Amendments do not exist, just like DC, for the sake of argument).
  
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  OUTSIDE_IP=$(dig +short my.ip @outsideip.net)
6. Re:Fourth Amendment by intermodal · 2013-07-31 02:40 · Score: 1
  
  I agree that it is utter bullshit as interpreted, but the question is not whether it needs to be changed but how we make that change become reality. We can argue shoulds and musts all day long, but until it comes to pass, it is but words.
  
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  In SOVIET RUSSIA... erm...NSA AMERICA, the Internet logs onto YOU!
7. Re:Fourth Amendment by spacepimp · 2013-07-31 02:40 · Score: 1
  
  I agree with you on this. That the nature of it being digital does not imply that there are no expectations of privacy. The logic i have heard is that you need to have a third party involved. Since that third party has knowledge the idea of privacy is non existent. therefore they can get their grubby hands on it. However,. If I send a package/letter it involves a third party. Why is that different?
8. Re:Fourth Amendment by vikingpower · 2013-07-31 02:40 · Score: 1
  
  This needs to be taken to SCOTUS, extra pronto.
  Yes, and.... if the SCOTUS ruling concurs with this one, what are you, poor devils of American citizens that you are, going to do then ??
  
  --
  Religous speak to God. Insane are spoken to by God. When all shut up, one can finally hear Shostakovich in peace
9. Re:Fourth Amendment by Froggels · 2013-07-31 02:44 · Score: 1
  
  Unfortunately the SCOTUS would in all likelihood agree with federal appeals court decision, ripping open the already gaping hole in the Constitution even further. The concept of checks and balances cannot work as intended in the current US system where the legislative executive and judicial branches of government are all serving the same greedy corporate interests. The current system is rotten at every level all the way to the core and there is nothing that anyone can do about it until it's too late. In the meanwhile it's probably best to just sit back and enjoy the partisan bickering.
10. Re:Fourth Amendment by Anonymous Coward · 2013-07-31 02:46 · Score: 0
  
  You don't have to cross state lines to be considered interstate commerce.
  https://en.wikipedia.org/wiki/Wickard_v._Filburn
11. Re:Fourth Amendment by Hatta · 2013-07-31 02:51 · Score: 2
  
  This needs to be taken to SCOTUS, extra pronto.
  Where they can rubber stamp whatever law enforcement wants, extra extra pronto.
  
  --
  Give me Classic Slashdot or give me death!
12. Re:Fourth Amendment by spire3661 · 2013-07-31 02:52 · Score: 1
  
  It starts with people recognizing and discussing how wrong it is. It has taken me years to feel confident enough to say the commerce clause is bullshit.
  
  --
  Good-bye
13. Re:Fourth Amendment by Anonymous Coward · 2013-07-31 02:56 · Score: 0
  
  My medical records are my 'personal papers' but are a business record to my physician, his billing service, the insurance company, etc.
14. Re:Fourth Amendment by intermodal · 2013-07-31 03:02 · Score: 1
  
  A very fair point. I've been saying the same for quite a while. However, it is unfortunate to note that nothing has changed on this front even with an increasing number of people recognizing it over time. On the positive side, I've met plenty of people who have come to agree the commerce clause's present interpretation is bullshit, but none at all who thought our way and changed their mind to agree with its interpretation at present.
  
  --
  In SOVIET RUSSIA... erm...NSA AMERICA, the Internet logs onto YOU!
15. Re: Fourth Amendment by AvitarX · 2013-07-31 03:05 · Score: 1
  
  Do you have access to your location data?
  I assume that's the difference I assume, these are records the cell company kept for their own use and can give away as they see fit (and unfortunately have to even with no subpoena).
  Your texts, email etc SHOULD be treated as yours, under the theory that you are renting the space they are stored, but it is your private info. I dont think the courts are consistent even there though.
  I see this as a case where private companies keep too much data that they gleefully hand over, but even if they wanted to fought it, there is nothing but a secret court to fight much of it in. Considering the tracking info will clearly cover times when there was an expectation of privacy, it wouldn't shock me to see it overturned.
  
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16. Re:Fourth Amendment by fnj · 2013-07-31 03:09 · Score: 1
  
  if the SCOTUS ruling concurs with this one, what are you, poor devils of American citizens that you are, going to do then
  Well, you are presuming future events which haven't occurred yet, but to answer your question, corrupt dickheads in the supreme court can be impeached by the house and tried by the senate, with immediate removal from office without appeal the penalty following conviction. Look, I know I'm running the risk of being laughed out of the room for even suggesting this, but after all, it is the next step.
  There is also further amendment of the constitution possible. If the justices are too stupid to read and comprehend english, or tyrannical enough to make up things that are not in the constitution, we can try making the point even more explicit.
  If all that fails, and the offense outrageous enough, there is the usual remedy to tyranny. The one this country was born with.
17. Re:Fourth Amendment by Anonymous Coward · 2013-07-31 03:12 · Score: 0
  
  This needs to be taken to SCOTUS, extra pronto.
  Yes, and.... if the SCOTUS ruling concurs with this one, what are you, poor devils of American citizens that you are, going to do then ??
  Mostly just bitch about it. The only thing that *would* work, we're all too chickenshit to follow through on.
18. Re:Fourth Amendment by Desler · 2013-07-31 03:26 · Score: 1
  
  Only someone ignorant would think thay SCOTUS will overturn this decision. And the House and Senate impeaching them? You're joking right? How wonderful it must be to be so naive.
19. Re:Fourth Amendment by CrimsonAvenger · 2013-07-31 03:42 · Score: 1
  
  You need to read the Commerce Clause and supporting case law,
  Just remember, abuse of the Commerce Clause really got going when FDR found that his New Deal was mostly unconstitutional, and he had to find some new way to justify it.
  Which "new way" involved threatening to pack the Supreme Court till they gave in and let him do what he wanted, then using the Commerce Clause to justify...anything.
  
  --
  
  "I do not agree with what you say, but I will defend to the death your right to say it"
20. Re:Fourth Amendment by Talderas · 2013-07-31 03:57 · Score: 1
  
  Wickard vs Filburn is the case which basically started the bullshit interpretation of the Commerce Clause.
  
  --
  "Lack of speed can be overcome. In the worst case by patience." --Znork
21. Re:Fourth Amendment by Anonymous Coward · 2013-07-31 04:13 · Score: 0
  
  Simplest Solution to Affect the Necessary Change: A bullet in the head of every politician in either the House of Representatives or the Senate. As for the House of Representatives it is clear the Government is not representing the People. Revolution is the only recourse. The Terrorists won a greater victory over "The Land of the Brave and the Home of the Free" than even their wildest 88 virgin fantasy could have possibly promised. Osama bin Laden is likely a dinner guest with Barack Hussein Obama at the White House on a regular basis.
22. Re:Fourth Amendment by Anonymous Coward · 2013-07-31 04:19 · Score: 0
  
  This needs to be taken to SCOTUS, extra pronto.
  Yes, and.... if the SCOTUS ruling concurs with this one, what are you, poor devils of American citizens that you are, going to do then ??
  Not to worry. The Americans (US citizens and permanent residents only) will merrily lick the balls of their masters, both governmental and corporate, all the while watching American Idol. The end days of the Roman Empire is repeating itself in "America". Fools.
23. Re:Fourth Amendment by intermodal · 2013-07-31 04:20 · Score: 1
  
  The terrorists didn't win this. We screwed ourselves over decades ago. It was pretty much all over with the New Deal, followed by the agencies created during World War II and kept in operation under the auspices of the Cold War.
  
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  In SOVIET RUSSIA... erm...NSA AMERICA, the Internet logs onto YOU!
24. Re:Fourth Amendment by Anonymous Coward · 2013-07-31 04:24 · Score: 0
  
  Putting Attorney General Eric Holder on trial for high crimes and misdemeanors would be a starting point.
25. Re:Fourth Amendment by IndustrialComplex · 2013-07-31 04:32 · Score: 1
  
  You don't have to cross state lines to be considered interstate commerce.
  https://en.wikipedia.org/wiki/Wickard_v._Filburn
  
  Wickard v Filburn went further than that. You don't even have to engage in commerce for it to be considered interstate commerce.
  
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26. Re:Fourth Amendment by classiclantern · 2013-07-31 05:37 · Score: 1
  
  Maybe it's high time we made privacy a Constitutional right. My proposed 28th Amendment: No person, group, or agency, public or private, foreign or domestic, may collect, record, transmit, or disclose any private information beyond that defined by United States Census law, regarding any individual without express written permission of the individual or a court order specific to an active criminal investigation. Private information includes, but is not limited to, location, financial transactions, medical records, school records, arrest records, associates, and associations. Candidates for elected positions must submit seven years past income tax records at least ninety (90) days before elections.
  
  --
  Now that I said that, I fell better.
27. Re:Fourth Amendment by grassy_knoll · 2013-07-31 07:04 · Score: 1
  
  Sadly true.
  If only the interstate commerce clause applied only to interstate commerce.
  
  --
  A Human Right
28. Re:Fourth Amendment by Anonymous Coward · 2013-07-31 08:44 · Score: 0
  
  Wickard vs. Filburn was decided by FDR's newly compliant court in 1942. He threatened to pack the court in the late 1930s, whereafter one justice retired and another had a miraculous conversion.
  The commerce clause jurisprudence will never become more strict. The final nail in the coffin was Gonzales v. Raich, where even Scalia stated couldn't bring himself to up-end the FDA regulatory machine. The whole debate over Obamacare was idiotic. If Scalia couldn't vote for the cancer patient in Raich, he had no business trying to distinguish the Affordable Care Act. Striking down the ACA would have created a horrible mess, where the government had the power to do stupid things (war on drugs) but no power to do smart things (fix insurance).
29. Re:Fourth Amendment by fnj · 2013-07-31 17:38 · Score: 1
  
  But it's really smart to just roll over and give up, eh, o spineless one? I tell you the recourses that are available, that were provided you by wise and dedicated men, and your response is to ridicule the idea that they might be used. You can take that attitude and shove it. Most people in the world would be glad to have some of those recourses you spit on.
Unlikely to impress SCOTUS by bill_mcgonigle · 2013-07-31 02:20 · Score: 4, Interesting

The Court was unanimous in /US v. Jones/ - it's hard to see how they'd backpedal because their concern was over the surveillance nature of modern technology, not merely the source of said data. By their logic in /Jones/, this case's data gathering would also be a search.
I'd feign shock that the 5th Circuit couldn't understand the /Jones/ decision, but it's so much more realistic to believe that those judges just wanted to give government power another bite at the /Jones/ apple.

--
My God, it's Full of Source!
OUTSIDE_IP=$(dig +short my.ip @outsideip.net)
1. Re:Unlikely to impress SCOTUS by intermodal · 2013-07-31 02:26 · Score: 2
  
  I agree with your reasoning. I'm just not as confident as you are in the consistency of the Supreme Court. That said, I think the 5th Circuit has willfully ignored the constituion and the intent of its clauses.
  
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  In SOVIET RUSSIA... erm...NSA AMERICA, the Internet logs onto YOU!
2. Re:Unlikely to impress SCOTUS by Anonymous Coward · 2013-07-31 02:38 · Score: 0
  
  from FTS
  
  ... the state court's ruling was based upon the text of the state's constitution, not that of the federal constitution.
  I'd have to say I agree with you, though I don't understand how an appeals court would rule on the issue using only the state constitution while willfully ignoring the federal one.
3. Re:Unlikely to impress SCOTUS by Hatta · 2013-07-31 02:54 · Score: 4, Informative
  
  Wasn't the issue in Jones that the police affixed the GPS tracker to the vehicle without a warrant? When you willingly carry a tracking device, the expectation of privacy is entirely different.
  
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  Give me Classic Slashdot or give me death!
4. Re:Unlikely to impress SCOTUS by Antipater · 2013-07-31 02:55 · Score: 1
  
  Completely different cases. The Fifth Circuit is Texas, Louisiana, and Mississippi. The NJ court ruled using the NJ state constitution on a case regarding NJ cops.
  
  --
  Everything is better with chainsaws.
5. Re:Unlikely to impress SCOTUS by intermodal · 2013-07-31 02:58 · Score: 1
  
  The synopsis does not specify which state's court they refer to in that sentence. It could be referring to either New Jersey or New York. In the former possibility, it makes sense, as states may protect above and beyond what the federal government does.
  
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  In SOVIET RUSSIA... erm...NSA AMERICA, the Internet logs onto YOU!
6. Re:Unlikely to impress SCOTUS by Antipater · 2013-07-31 03:17 · Score: 1
  
  Yeah, Jones is tricky. In fact, after SCOTUS threw out the GPS data, they had a retrial, and the prosecution used cell tracking data instead of the GPS data. The district court said that was OK. It never went back up the line to the Supremes, though, because Jones took a plea deal rather than keep fighting.
  The problem is that while the justices voted unanimously in Jones, they did so for different reasons. A number regarded the placement of the GPS device as a personal trespass, which would not apply to cell data. Scalia's opinion pays lip service to the reasonable-expectation-of-privacy argument, but in reality it's up in the air if he would hold to that in a case that didn't involve personal trespass.
  
  --
  Everything is better with chainsaws.
7. Re:Unlikely to impress SCOTUS by Anonymous Coward · 2013-07-31 03:37 · Score: 0
  
  The Court was unanimous in /US v. Jones/ - it's hard to see how they'd backpedal because their concern was over the surveillance nature of modern technology, not merely the source of said data.
  No, the police needed a warrant to physically place the tracker on the suspect's vehicle.
8. Re:Unlikely to impress SCOTUS by jedidiah · 2013-07-31 08:40 · Score: 1
  
  States are still independent entities with their own judiciary.
  People tend to forget that.
  
  --
  A Pirate and a Puritan look the same on a balance sheet.
9. Re:Unlikely to impress SCOTUS by Chuckstar · 2013-07-31 10:15 · Score: 1
  
  Please read the Jones opinion.
  The supreme court ruled the way it did only because the FBI had to encroach upon the vehicle in order to place the tracking device. The court even acknowledged that there are ways to introduce such a device into a vehicle without violating the 4th amendment. There was a previous case where a radio beacon was introduced into a suspect's car by hiding it in a container which he accepted voluntarily from an informant. The court reaffirmed the contitutionality of that type of tracking.
  The Jones ruling only makes it unconstitutional for the government to secretly hide something in your car. It does not make it unconstitutional for the government to closely track your whereabout by otherwise constitutional means. Furthermore, it has long been the status of jurisprudence that information about you that is held by others (whether individuals or corporations) is not protected by the 4th amendment.
10. Re:Unlikely to impress SCOTUS by WOOFYGOOFY · 2013-07-31 14:40 · Score: 1
  
  For anyone who isn't aware, the 5th circuit is generally taken to be conservative while the 9th is generally taken to be liberal
11. Re:Unlikely to impress SCOTUS by bill_mcgonigle · 2013-08-01 04:45 · Score: 1
  
  When you willingly carry a tracking device, the expectation of privacy is entirely different.
  The NJ Court's opinion is that people *don't* willingly carry a tracking device - that that information is incidental to the provision of the service and not part of the customer/provider bargain.
  That's how everybody I know views the service they're paying for. And there's no business reason related to the provision of that service for the telcos to retain nonymous location data either, so it's entirely a government intrusion that it exists in the first place (or skulduggerous behavior on the telcos part, but still not related to the provision of service).
  One of the interesting parts of /Jones/ was that it included discussion of how modern technology impacts data privacy. The idea that metadata is without protection predates Big Data and modern databases, which dramatically alters how that data can be used. I'm hoping they'll realize that 70's technology informed a 70's opinion and that 10's technology requires a different opinion.
  
  --
  My God, it's Full of Source!
  OUTSIDE_IP=$(dig +short my.ip @outsideip.net)
xbone by MrL0G1C · 2013-07-31 02:22 · Score: 2

So if MS' s XBone records you and saves the data on its corporate servers, it 'clearly' becomes business data and the government can then spy on you without pesky lawsuits or constitutional hassles.
Judge is a twisting cunt and just shafted all Americans big time.

--
Waterfox - a Firefox fork with legacy extension support, security updates and better privacy by default.
1. Re:xbone by gl4ss · 2013-07-31 02:43 · Score: 1
  
  more importantly anything you store on the cloud that is somehow billed for by someone then it's interstate commerce?
  sounds like bullshit.
  (technically storing your email and it's access data is quite similar to this data)
  
  --
  world was created 5 seconds before this post as it is.
2. Re:xbone by fnj · 2013-07-31 03:13 · Score: 1
  
  sounds like bullshit.
  ... and looks like ... and swims like ... and quacks like.
3. Re:xbone by Desler · 2013-07-31 03:28 · Score: 1
  
  No they only shafted the states in the Fifth Circut.
4. Re:xbone by MrL0G1C · 2013-07-31 07:44 · Score: 1
  
  Yep, I have a bad habit of going blabber mouth without reading summary properly (I don't read the article of course!),. ..and "but noted that the state court's ruling was based upon the text of the state's constitution, not that of the federal constitution." So this 5th Court can ignore the constitution? Doesn't sound right.
  
  --
  Waterfox - a Firefox fork with legacy extension support, security updates and better privacy by default.
5. Re:xbone by Anonymous Coward · 2013-08-01 18:17 · Score: 0
  
  Love the attempt an fanboyism. By this logic, PSN is also in the same boat.
Hm. by Anonymous Coward · 2013-07-31 02:22 · Score: 5, Insightful

Then, in the spirit of an open government, I would like to have all historical location data of all the elected politicians please.
1. Re:Hm. by Anonymous Coward · 2013-07-31 02:29 · Score: 0
  
  We know where you live. Please cease with your requests, This is a polite warning.
2. Re:Hm. by Anonymous Coward · 2013-07-31 02:46 · Score: 0
  
  This would be a good way to stop something like this. If you are a minimum wage employee working at Verizon or AT&T you should download the location records of as many politicians as you can find. You make a website called "trackmycongressman.com" that just posts all of them on a map where you can scroll through and watch them travel. They are your business records, you can disclose them if you want.
3. Re:Hm. by WillAdams · 2013-07-31 03:34 · Score: 1
  
  I'd pay money for that. Where do I send a check?
  
  --
  Sphinx of black quartz, judge my vow.
4. Re:Hm. by GodfatherofSoul · 2013-07-31 03:39 · Score: 1
  
  You know, that's the world we live in. If some politician finds out that his privileges have been nullified and his or his family's travel is now a matter of public record, they'll vote to pull back executive power. Slightly OT, but there was a small town around KC on a highway that commuters used. Their cops routinely wrote spurious tickets and pulled commuters over for absolutely anything and sometimes for made up reasons (touching the yellow or white line, driving too fast, driving too SLOW, in some cases a matter of 1 or two miles). Even cautious drivers were pulled over for suspicion.
  Anyway, NOT a damned thing happened even with all the citizen complaints until the sheriffs were dumb enough to pull over a state legislator for false reasons. He responded by getting a law passed so that only X% of a town's revenue can come from traffic tickets. Since that was the only thing that town did, it basically dissolved after that and disbanded their police force.
  
  --
  I swear to God...I swear to God! That is NOT how you treat your human!
5. Re:Hm. by steelfood · 2013-07-31 09:29 · Score: 1
  
  Preferably visualized in this form.
  Not just elected politicians either. Every high-level government worker, for their government-issued phones and pagers.
  
  --
  "If a nation expects to be ignorant and free in a state of civilization, it expects what never was and never will be."
What is the carriers' position? by timeOday · 2013-07-31 02:22 · Score: 3, Interesting

Even if the carriers can legally share their "their" data (about you) without a warrant, nothing says they have to, unless there is a warrant. It seems a provider would have nothing to lose, and could gain, by promising confidentiality unless there is a warrant. Do any of them have any meaningful sort of privacy policy about this?
1. Re:What is the carriers' position? by Anonymous Coward · 2013-07-31 02:47 · Score: 1
  
  I don't know how the hell they can put "it's business" in front of "your rights" but they did. Now all we need to do is start a business that hires folks to walk around neighborhoods, keeping tabs on home address, car tags on the property, time. We don't have to stop at homes either, this could go all the way to businesses, government buildings. And it doesn't have to stop at citizens either, we can do this to police/city vehicles/personnel as well. See the thing to bring to light here is the fact that people are no longer "consumers", but rather they're "data producers". And since being a business removes all of the people's rights, then we can do whatever the fuck we want. Hey, maybe the company that I'm speaking about sounds odd, but it'd be the only company that could possibly compete with the NSA's data. I mean, as it stands, who can question the validity of NSA's data?
2. Re:What is the carriers' position? by Anonymous Coward · 2013-07-31 02:48 · Score: 0
  
  Providers would lose those juicy government contracts or their CEOs languish in jail (Quest) for refusing to honor a request to share their customer's data.
3. Re:What is the carriers' position? by pixelpusher220 · 2013-07-31 02:55 · Score: 3, Informative
  
  nothing says they have to
  Actually, lots of the Patriot Act and such recent legislation is making them do exactly that. They don't have grounds to oppose a subpoena since it isn't incriminating of 'them'.
  
  --
  People in cars cause accidents....accidents in cars cause people :-D
4. Re:What is the carriers' position? by MozeeToby · 2013-07-31 02:56 · Score: 2
  
  Nothing to lose? You realize the government can lean on companies that don't cooperate right? Make all kinds of things more difficult, more costly, and sometimes even impossible. From spectrum deals to taxes to grants to visa applications, our various federal departments are far too interconnected to claim that they have "nothing to lose" by refusing to cooperate.
5. Re:What is the carriers' position? by timeOday · 2013-07-31 03:24 · Score: 1
  
  Thanks for the reference to Quest CEO Joseph Nacchio. That is a fascinating and story that deserves deeper treatment, with angles of both corporate malfeasance and the security state. Hero, villain, or both? I wish I could watch a Frontline on it right now.
6. Re:What is the carriers' position? by Anonymous Coward · 2013-07-31 03:33 · Score: 0
  
  Nothing to lose... except lucrative government contracts. Government can also use regulatory red tape, block consolidation, etc. There are only four major wireless carriers out there (some might say only two considering the coverage issues of Sprint and T-Mobile). If all four are subservient to the surveillance state - what do you do? Even if some are better than others, how do you know who is handing over your data in the first place?
  Consumers don't have many choices and no information about who is and isn't cooperating.
7. Re:What is the carriers' position? by MobyDisk · 2013-07-31 03:37 · Score: 1
  
  We need data protection laws. They should not be able to share such data without a warrant.
expectation of privacy by ArcadeX · 2013-07-31 02:30 · Score: 2

if you are using a cel phone, and paying a carrier to provide service to your phone, it's a 50/50 relationship. as crappy as it is, you shouldn't have an expectation of privacy. same reason i like to pay cash, i have no expectation of privacy when visa / mastercard keep records of all the transactions performed by them on my behalf.

--
An I.T. motto in the hands of an idiot is a dangerous thing...
1. Re:expectation of privacy by Anonymous Coward · 2013-07-31 02:49 · Score: 0
  
  What about when you got to a hospital? The hospital is a business. Should you expect privacy with regard to your medical records? They are, after all, created by hospital employees, stored on hospital systems, to be used by hospital medical personnel. Maybe you also think that the hospital should be able copyright your records? Why shouldn't they be able to charge you a royalty when you need to share your records with another competing medical service. Medical records are really just business records, right? Thinking like yours is going to lead to this scenario eventually.
2. Re:expectation of privacy by CanHasDIY · 2013-07-31 02:56 · Score: 4, Insightful
  
  if you are using a cel phone, and paying a carrier to provide service to your phone, it's a 50/50 relationship. as crappy as it is, you shouldn't have an expectation of privacy.
  Hmm, let's apply that mentality to a few other arenas, and see how well it works:
  If you are sending a package, and paying a carrier to deliver it, it's a 50/50 relationship... you shouldn't have an expectation of privacy; UPS can just rip open your package and go through it.
  If you are traveling, and paying a service to move you (taxi/airline/etc), you shouldn't have an expectation of privacy; Taxi drivers can strip search passengers.
  If you use electricity, and pay a service to provide it, you shouldn't have an expectation of privacy; the utility company can go through all your shit to see what you're using the electricity for.
  Applied to pretty much any other service available/necessary, that sort of thinking obviously does not fly; so why would it be OK with communications?
  
  --
  An enigma, wrapped in a riddle, shrouded in bacon and cheese
3. Re:expectation of privacy by ArcadeX · 2013-07-31 03:19 · Score: 1
  
  if you send a sealed package, you have the expectation of that package staying sealed. you have no expectation that UPS won't keep track of where they picked up the package, and where it was delivered to; that data belongs to them. you have an expectation that the cel carrier won't read your text (not much of one), but where they pick up the text and who they deliver it to is not data that belongs soley to you.
  
  --
  An I.T. motto in the hands of an idiot is a dangerous thing...
4. Re:expectation of privacy by Holi · 2013-07-31 03:22 · Score: 1
  
  Well that's where you and I differ. I don't think having a business relationship with a company is enough to require me to give up my expectation of privacy. I expect them to use my usage data to bill me, not to give to the government.
  If the government wants something it should be the de facto standard to need a warrant. They should not be allowed to side step the constitution by having a 3rd party collect the data.
  
  --
  Sorry, teleporters just kill you and then make a copy. A perfect, soul-less copy.
5. Re:expectation of privacy by SonnyDog09 · 2013-07-31 03:51 · Score: 1
  
  Your health records/data are protected by HIPAA (note one p, two a's). See http://www.hhs.gov/ocr/privacy/
  
  --
  Your "fair share" is NOT in my wallet.
6. Re:expectation of privacy by CanHasDIY · 2013-07-31 04:01 · Score: 1
  
  if you send a sealed package, you have the expectation of that package staying sealed. you have no expectation that UPS won't keep track of where they picked up the package, and where it was delivered to; that data belongs to them. you have an expectation that the cel carrier won't read your text (not much of one), but where they pick up the text and who they deliver it to is not data that belongs soley to you.
  OK, so that explains tracking in/outbound call origin/destination information... but not location tracking or any of their other questionable practices. Besides, you said that we "shouldn't have an expectation of privacy" when it comes to carrier services in general, a philosophy I not only disagree with, but find incredibly dangerous were it to become the status quo (yea, yea, I know, don't remind me).
  
  you have an expectation that the cel carrier won't read your text (not much of one)
  Say hello to 2 years ago
  
  --
  An enigma, wrapped in a riddle, shrouded in bacon and cheese
7. Re:expectation of privacy by steelfood · 2013-07-31 09:32 · Score: 1
  
  If you are sending a package, and paying a carrier to deliver it, it's a 50/50 relationship... you shouldn't have an expectation of privacy; UPS can just rip open your package and go through it.
  Actually, this was settled with mail via the USPS a while ago. Stuff inside the envelopes were considered confidential, while any markings on the outside (address, return address, etc.) were not.
  I believe this was used to justify the legality of collecting certain types of "metadata" not so long ago.
  
  --
  "If a nation expects to be ignorant and free in a state of civilization, it expects what never was and never will be."
8. Re:expectation of privacy by CanHasDIY · 2013-07-31 09:46 · Score: 1
  
  If you are sending a package, and paying a carrier to deliver it, it's a 50/50 relationship... you shouldn't have an expectation of privacy; UPS can just rip open your package and go through it.
  Actually, this was settled with mail via the USPS a while ago. Stuff inside the envelopes were considered confidential, while any markings on the outside (address, return address, etc.) were not.
  I believe this was used to justify the legality of collecting certain types of "metadata" not so long ago.
  And if the government could prove to me that the metadata was all they had access to, I probably wouldn't be nearly as upset about it.
  However, when pressed they respond "we don't have to tell you," well, that doesn't inspire a lot of confidence. Not to mention, given the track record of the federal government, we'd be stupid to take them at their word.
  
  --
  An enigma, wrapped in a riddle, shrouded in bacon and cheese
At the moment by vikingpower · 2013-07-31 02:42 · Score: 1

...there is no such thing as a well-functioning judicial system in the USA, dixit Jimmy Carter. I tend to concur.

--
Religous speak to God. Insane are spoken to by God. When all shut up, one can finally hear Shostakovich in peace
Eli and Jedediah... by webbiedave · 2013-07-31 02:46 · Score: 5, Insightful

... and the rest of Amish went along their day, unaware of how right they are.
1. Re:Eli and Jedediah... by Anonymous Coward · 2013-07-31 04:28 · Score: 0
  
  ... and the rest of Amish went along their day, unaware of how right they are.
  Why did you post this on the internet? Is it possible that despite its potential to track you, you still find your cell phone worth keeping?
!='clearly a business record' by Anonymous Coward · 2013-07-31 02:56 · Score: 0

the tower(s) used to facilitate a given call are potentially relevant to billing (roaming, reselling, etc) but how is continuous location data when I'm not driving revenue and/or cost to the carrier (i.e. 99.99% of the time) a "business record" to the carrier? and that's just talking at the TOWER precision (hell, I'll be generous & say sector precision) - can someone explain to me how continuous high-precision location data not associated with (a) billable event(s) is "business records"?
what business legitimate (i.e. non-NSA) purpose does this data have?
Isn't the address on a letter a business record by Anonymous Coward · 2013-07-31 03:02 · Score: 0

...to the USPS? Better track them too!
1. Re:Isn't the address on a letter a business record by Anonymous Coward · 2013-07-31 04:43 · Score: 0
  
  Its already done, there was a story a month or two back about how the FBI was perusing mailing records searching for the person(s) mailing those "ricin" letters, and I think the article mentioned how law enforcement/intelligence agencies had access to it for over a decade. I imagine there are already lists of all of those "troublemakers" contributing to the EFF/ACLU/NRA. Its the one constant in the universe, "if a government has a power, they WILL abuse that power". It wouldn't be so bad if there was at least some accountability, but as we've seen time and time again there are (at least) two standards. One for government officials/officers/appointees and one for everyone else, if it weren't all of those Whitehouse emails/visitor logs/phone records that were subpoenaed wouldn't have been "never kept"/"lost"/"too difficult to collect"/"national secrets". Its one of the great hypocrisies of our age, as government continually demands more and more access into the private lives of its citizens they invoke ever increasing secrecy in their own activities (ALL activities, not just defense related). In a "free" society that is not a good sign.
Privacy Amendment NOW by Anonymous Coward · 2013-07-31 03:06 · Score: 0

In the Federalist No. 84, Alexander Hamilton wrote, under the pseudonym Publius, the following about the Bill of Rights:

I go further, and affirm that bills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers which are not granted; and on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power.
With the decimation of the 4th Amendment made by laws and court rulings which have created these "various exceptions to powers" (i.e national security), it looks like Hamilton was correct. Unfortunately, the only course left to the country to preserve the recognition of our natural right to privacy is an amendment which specifically updates the 4th Amendment for the digital age.
This is insane by Anonymous Coward · 2013-07-31 03:08 · Score: 0

First they have to qualify it with "per se", and second of all they are positing that "location data" and "business record" are synonymous. What the hell is wrong with these people? Location data is clearly location data, and business records are business records. They are not each other.
Shining example of why nothing good lasts forever by TheCarp · 2013-07-31 03:11 · Score: 5, Insightful

The moment you write a document like the constitution, somebody is looking for how to game it. Over time they find technicality after technicality that allow them to push the envelope in new ways, until the entire spirit and intent of the original document is so shreded that it barely resembles what it was intended to.
How do we read amendments like the 4th and 5th so narrowly? Is it really ok that minor technological changes allow technicalities to be used to extend government powers in ways never before envisioned?
How does anyone seriously and honestly look at the constitution, then look at what is going on here, and not see that the only reason this doesn't get prohibited under them is minor technicalities that never could have been seen before they happened? Its a violation of the very spirit of the document!

--
"I opened my eyes, and everything went dark again"
Are the papers yours? by sjbe · 2013-07-31 03:14 · Score: 1

What? Emails, text messages and other electronic communications are not "papers", you say?
The question is whether they are *your* papers. If they aren't then the 4th amendment doesn't apply. It is not entirely obvious whether phone records should count as your property nor is it clear whether you have a reasonable expectation of privacy regarding them. (For the record *I* think they should be treated as yours and not available to law enforcement without a warrant - but that's just my opinion) If they are yours, then the question becomes whether the search is unreasonable. But if they aren't yours then the question of being an unreasonable search becomes moot.
1. Re:Are the papers yours? by Antipater · 2013-07-31 03:20 · Score: 2
  
  I've often wondered why privacy lawyers don't frame it differently. It's not about the papers, it's about the person. Location tracking necessarily implies that the surveillance target is no longer secure in their person.
  
  --
  Everything is better with chainsaws.
2. Re:Are the papers yours? by tburkhol · 2013-07-31 04:00 · Score: 1
  
  The question is whether they are *your* papers. If they aren't then the 4th amendment doesn't apply. It is not entirely obvious whether phone records should count as your property nor is it clear whether you have a reasonable expectation of privacy regarding them.
  
  The papers themselves may belong to Verizon, but this information is about me. Calling them business records is fundamentally an end-run around the intent that a person's personal information be protected.
  Look, technically, the results of my HIV test are just business records to my physician, but no one would argue that the government should be able to access and store that information. Phone metadata can be personally identified, which makes it the person's data. Just because some third party business is the entity that creates or collects the data doesn't make it any less my data, nor any less of an invasion for that third party to turn the data over to the government or the evening news. If the evening news opened every broadcast with a story about my latest medical test, or even just my current physical location, I would feel pretty fucking violated, regardless of whether any of their viewers "cared" or not.
c'est la guerre, or something by Impy+the+Impiuos+Imp · 2013-07-31 03:18 · Score: 1

"In a significant victory for law enforcement"
Gotta love ignorant writers. How about, "In an astounding loss for the framers of the Constitution..."
Note to future constitution writers: "Government has only these powers and none others", "you can't construct other powers from these", and "whenever new stuff is invented, if government isn't authorized, it can't. Amend if desired to allow it" are just optional.
You're gonna need better language. Because you sure ain't gonna get better people.

--
(-1: Post disagrees with my already-settled worldview) is not a valid mod option.
Re:Shining example of why nothing good lasts forev by Anonymous Coward · 2013-07-31 03:32 · Score: 0

in other words
this is why we can't have nice things, america.
Now, people are businesses by WOOFYGOOFY · 2013-07-31 03:37 · Score: 1

Not only are business people, with the freedom so speech and the ability to contribute unlimited funds to elections, but now, people are businesses with no 4th Amendment rights.
The transformation is complete. The fascist dream of merging corporate power with state power has been achieved *by turning people into businesses.*
That's how they win. They come at you in a way you never imagined.
Good luck by Anonymous Coward · 2013-07-31 03:37 · Score: 0

With apologies to Tommy Chong: All of you cats who think the government can be changed to fix this problem, well you're all fucked!
If it's just business data. by Beer_Smurf · 2013-07-31 03:54 · Score: 2

Then is should be perfectly legal to hack your phone to give false location data.
17 People Determine the Outcome for Millions by sl4shd0rk · 2013-07-31 04:18 · Score: 1

The court is composed of seventeen active judges and is based at the John Minor Wisdom United States Court of Appeals Building in New Orleans, Louisiana.
Many of the judges were appointed by Bush and Regan. Go figure why this didn't pass :|
(doesn't quite paste correctly from the link so use you imagination)
# Judge Duty station[4][5] Born Appointed Chief Appointed by 71 Carl E. Stewart Shreveport, LA 1950 1994 2012 Clinton 51 Carolyn Dineen King[6] Houston, TX 1938 1979 19992006 Carter 60 E. Grady Jolly Jackson, MS 1937 1982 Reagan 61 W. Eugene Davis Lafayette, LA 1936 1983 Reagan 63 Edith H. Jones Houston, TX 1949 1985 2006 2012 Reagan 64 Jerry Edwin Smith Houston, TX 1946 1987 Reagan 73 James L. Dennis New Orleans, LA 1936 1995 Clinton 74 Edith Brown Clement New Orleans, LA 1948 2001 G.W. Bush 75 Edward C. Prado San Antonio, TX 1947 2003 G.W. Bush 77 Priscilla Owen Austin, TX 1954 2005 G.W. Bush 78 Jennifer Walker Elrod Houston, TX 1966 2007 G.W. Bush 79 Leslie H. Southwick Jackson, MS 1950 2007 G.W. Bush 80 Catharina Haynes Dallas, TX 1963 2008 G.W. Bush 81 James E. Graves, Jr. Jackson, MS 1953 2011 Obama 82 Stephen A. Higginson New Orleans, LA 1961 2011 Obama

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Join the Slashcott! Feb 10 thru Feb 17!
Business Records? by Anonymous Coward · 2013-07-31 04:24 · Score: 0

A business record with no real purpose for its collection as far as the business is concerned? These tracking/location systems were not put in place by the businesses in question but by government regulators/officials putting pressure on carriers to create these "features" for law enforcement purposes. This is like saying law enforcement searching your apartment is ok because your landlord has a stipulation that he can check your apartment for maintenance issues, and that stipulation was put in place by the city/state/feds.
billing statements by Anonymous Coward · 2013-07-31 04:25 · Score: 0

so iare my doctors billing records concerning me revueable with out a warrent?
they're clearing bussiness records.
business record ? Not really by Anonymous Coward · 2013-07-31 05:04 · Score: 0

the court said a warrantless search was 'not per se unconstitutional' because location data was 'clearly a business record'
That would maybe be true if the business would be holding on to that data for billing-purposes (or alike).
They stop being 'business records' when the business do not need them anymore. Than they become trash, clutter or any other word you want to use for worthless, space-occupying stuff. Its just that they are not allowed to throw them away because of "you must keep them available to us" laws the gouverment has created.
So, arguably those records are, from the moment the business does not need them anymore but are not allowed to throw them away, something quite different (unwarranted searches before-the-fact comes to mind).
Ofcourse, the Law is no stranger to juggeling with words when it benefits them ...
Re:Shining example of why nothing good lasts forev by MobyDisk · 2013-07-31 05:16 · Score: 1

What we should learn from this is that a constitution needs to be a living document. Perhaps constitutional conventions should be required every 20 years or so.
Instead of having courts arguing over the wording of it, the people should just correct the words. Is "persons, houses, papers, and effects" not clear anymore? Change it. Do we honestly think that nuclear weapons aren't "arms?" Let's just fix that so there's no question.
Sure about that? by ThatsNotPudding · 2013-07-31 05:25 · Score: 1

This needs to be taken to SCOTUS, extra pronto.
Careful what you wish for. Relying on Alito, Roberts, Scalia (and his shadow), and Kennedy randomly flipping his coin to insure your mere human rights is sketchy at best.

The more I think of these a-holes, the more I think of all the 30s era German judges that rubber-stamped the Chancellors' laws.
About you doesn't mean you own it by sjbe · 2013-07-31 05:41 · Score: 1

The papers themselves may belong to Verizon, but this information is about me.
Doesn't necessarily matter if the information is about you unless there is a law giving you specific rights regarding how that information is handled. Just because it is about you doesn't mean you own the information. Like I said, the first question is whether the "papers" are yours. If they are not then you have no standing to challenge others looking at them under the constitution.

Look, technically, the results of my HIV test are just business records to my physician, but no one would argue that the government should be able to access and store that information.

In many places (like the UK) your medical records are explicitly NOT yours. Whether you own the health records is merely a matter of law and can be handled either way. In the US (generally) you own your records or at least have specific rights to them. Not so in other places. Claiming that "no one" thinks it is a good idea for the government to have access to this information is demonstrably not true. Plenty of people think the government should have that sort of access. (I happen to disagree with them like you but they do think that) And that viewpoint is not unreasonable especially in places where the government is the one providing the healthcare.
Re:Shining example of why nothing good lasts forev by zzsmirkzz · 2013-07-31 06:05 · Score: 1

It IS a living document now that can be changed. However, the methods for changing it, properly, are hard and those in power are to lazy to do it, especially when the people aren't forcing them to. Of course, if they were to do it the proper way, they actually need the support of the vast majority which in most of these cases they do/did not have.
Exactly... by superdave80 · 2013-07-31 06:47 · Score: 1

...because location data was 'clearly a business record' and therefore not protected by the Fourth Amendment.''

Yeah, it is a business record. My business, not yours, assholes.
Covering their asses by Anonymous Coward · 2013-07-31 07:47 · Score: 0

They need to explicitly need to legalize our slavery as quick as possible before the rest of the Snowden material drops.
By legalizing this kind of stuff right in our faces they can say it was perfectly fine because it was not done in secret - instead right in front of your fucking face, and no there's nothing you can do about it personally.
Courts and judges love doing this kind of stuff :) judges are NOT about fairness and justice, they are about enriching their corporate masters of whom they are slaves for.
Re:Shining example of why nothing good lasts forev by steelfood · 2013-07-31 09:39 · Score: 1

The moment you write a document like the constitution, somebody is looking for how to game it.
They're called lawyers, and this idea applies to all written documents.
The judges are supposed to keep that sort of behavior in check, but they are pressured by various forces, including the other two branches of the government as well as the people, to do the popular thing instead of the right thing. Their own biases also come into play, but good judges either try to set that aside, or recuse themselves if they are unable to.

--
"If a nation expects to be ignorant and free in a state of civilization, it expects what never was and never will be."
Question by flacco · 2013-08-01 05:56 · Score: 1

DROID4 : phone off = no location tracking? I can do without texts from the GF while about my business being an existential threat to the United States.

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pr0n - keeping monitor glass spotless since 1981.
It's not illegal! by MLRScaevola · 2013-08-01 06:31 · Score: 1

I like what John Oliver said about the legality of NSA surveillance: "Mr. President, no one is saying that you broke any laws! We're just saying, it's a little bit weird that you didn't have to!"