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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."
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
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)
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
Then, in the spirit of an open government, I would like to have all historical location data of all the elected politicians please.
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
... and the rest of Amish went along their day, unaware of how right they are.
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
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"