Fifth Circuit Upholds Warrantless Cellphone Location Tracking

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."

Comments

LOL Corporations!

[Qzukk]

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.

Re:LOL Corporations!

[blcamp]

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.

Re:LOL Corporations!

[Anonymous Coward]

RIght, but if corporations are people, then their business records are clearly "personal effects and papers," no?

Re:LOL Corporations!

[jittles]

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...

Re:LOL Corporations!

[pixelpusher220]

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.

Re:LOL Corporations!

[Greyfox]

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.

Re:LOL Corporations!

[10101001 10101001]

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.

Re:LOL Corporations!

[enjerth]

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.

Fourth Amendment

[blcamp]

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.

Re:Fourth Amendment

[EmagGeek]

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.

Re:Fourth Amendment

[operagost]

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!

Re:Fourth Amendment

[Hatta]

This needs to be taken to SCOTUS, extra pronto.

Where they can rubber stamp whatever law enforcement wants, extra extra pronto.

Unlikely to impress SCOTUS

[bill_mcgonigle]

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.

Re:Unlikely to impress SCOTUS

[intermodal]

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.

Re:Unlikely to impress SCOTUS

[Hatta]

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.

xbone

[MrL0G1C]

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.

Hm.

[Anonymous Coward]

Then, in the spirit of an open government, I would like to have all historical location data of all the elected politicians please.

What is the carriers' position?

[timeOday]

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?

Re:What is the carriers' position?

[pixelpusher220]

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'.

Re:What is the carriers' position?

[MozeeToby]

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.

expectation of privacy

[ArcadeX]

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.

Re:expectation of privacy

[CanHasDIY]

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?

Eli and Jedediah...

[webbiedave]

... and the rest of Amish went along their day, unaware of how right they are.

Shining example of why nothing good lasts forever

[TheCarp]

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!

Re:Are the papers yours?

[Antipater]

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.

If it's just business data.

[Beer_Smurf]

Then is should be perfectly legal to hack your phone to give false location data.