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4th Circuit Holds That Obtaining Extended Cell-Site Records Requires a Warrant

Posted by samzenpus on from the get-the-paperwork dept.

schwit1 writes: In the new opinion, the Fourth Circuit (Judge Davis joined by Judge Thacker, with Judge Motz dissenting) holds that ordering a cell provider to hand over "extended" records is a Fourth Amendment search because "society recognizes an individual's privacy interest in her movements over an extended time period." The Fourth Circuit relies primarily on the "mosaic theory" arguments of the D.C. Circuit's opinion in United States v. Maynard and the concurring opinions when that case reached the Supreme Court under the name of United States v. Jones.

23 of 37 comments (clear)

  1. you want a warrant? by turkeydance · · Score: 1

    right here. i've got your warrant right here.

    1. Re:you want a warrant? by msauve · · Score: 2

      "turkeydance" is a strange name for a FISA court judge.

      --
      "National Security is the chief cause of national insecurity." - Celine's First Law
  2. is the 4th Circuit forgetting the Sunset Clause? by ihtoit · · Score: 2

    Searches under PATRIOT don't require a warrant - until the end of December.

    All a Fed has to do is whisper "suspected terrorist" into the air and he can then hold you in a six by eight room with two chairs and one small table with a steel bar across one side, with no warrant or charge, until you grow old and die.

    --
    Political debates have me rolling my eyes so much I think I got optical whiplash. I should sue. - Foamy The Squirrel
  3. Cell site records shouldn't be allowed at all. by timrod · · Score: 2

    As the now-famous case of Adnan Syed has taught us, cell site records are pointless in criminal cases because they're unreliable as a means of determining where someone is apart from a very basic (ie; telling what state or city a person is in) level. The towers a phone's signal goes through are never the same twice - even someone repeating a call in the same location a mere second later would be routed differently. Syed's case shows just how badly the police abuse this: they used cell data taken months after the fact to build a story that didn't make sense and contradicted other evidence in the case. Despite what the police think, cell site data is not GPS and is not a reliable means of locating a person. Using cell site data this way is junk science on the level of the polygraph test.

    The real answer is to keep cell site data out of court entirely.

    1. Re:Cell site records shouldn't be allowed at all. by ihtoit · · Score: 1

      CSD is very accurate. I've sat in on a case where it was used to retrace a person's precise movements to the second and to within three metres, using data that was six months old. It resulted in a conviction for arson reckless and attempted multiple murder.

      (R v Stafford)

      --
      Political debates have me rolling my eyes so much I think I got optical whiplash. I should sue. - Foamy The Squirrel
    2. Re:Cell site records shouldn't be allowed at all. by Damarkus13 · · Score: 1

      How can which cell tower your phone is currently connected to possibly locate you to within 3m? That's usually about as accurate as the GPS system in a phone can get.

    3. Re:Cell site records shouldn't be allowed at all. by ihtoit · · Score: 1

      that information is probably proprietery, all I can tell you is what I saw in a courtroom mounted on an easel: a map showing a tickmarked path with timestamps every few ticks and three marks which apparently indicated the location of the handset when calls were either initiated or answered. When asked by the judge where the trace came from, the prosecutor stated that it came from cell site data, connected to the accused's mobile phone.

      --
      Political debates have me rolling my eyes so much I think I got optical whiplash. I should sue. - Foamy The Squirrel
    4. Re:Cell site records shouldn't be allowed at all. by AHuxley · · Score: 1

      Italy did it years ago with the "In Italy, CIA Agents Are Undone by Their Cell Phones" ( 06.26.07) in open court with cell logs.
      http://archive.wired.com/polit...
      "When an Italian prosecutor pulled the records of phones in the area at the time, the plot became apparent. He was able to identify the agents (by alias), where they had stayed, and even calls they made ..."

      --
      Domestic spying is now "Benign Information Gathering"
    5. Re:Cell site records shouldn't be allowed at all. by Damarkus13 · · Score: 1

      Nothing in that article suggests accuracy to 3m.

    6. Re:Cell site records shouldn't be allowed at all. by AHuxley · · Score: 3, Informative

      "Black Hat 2013 - OPSEC Failures of Spies"
      https://www.youtube.com/watch?...
      6.56 to 9.00 in has the map reconstruction of a cell phone been active.
      The "accuracy to 3m" just suggests a road used. Think of a cell log over time and a city map.
      "Renditions Case" "October 28, 2009" http://www.spiegel.de/internat...
      "Using special software, that had ironically been given to Megale's antiterror unit by the CIA, the police were able to create movement profiles for each mobile phone user."
      "accuracy" was never a problem, only the sorting of the many calls in the area.

      --
      Domestic spying is now "Benign Information Gathering"
    7. Re:Cell site records shouldn't be allowed at all. by Damarkus13 · · Score: 1

      I'm not arguing that cell cite data could create a fairly accurate picture of overall movements, but the post I replied to claimed "precise movements to the second and to within three metres". I don't believe that is possible with nothing but cell site data.

    8. Re:Cell site records shouldn't be allowed at all. by ShanghaiBill · · Score: 1

      all I can tell you is what I saw in a courtroom mounted on an easel: a map showing a tickmarked path with timestamps every few ticks

      So we should trust prosecutors when they say CSD is accurate because a prosecutor told you that CSD is accurate?

    9. Re:Cell site records shouldn't be allowed at all. by gstoddart · · Score: 3, Informative

      Pure speculation: two towers can triangulate, three more so, combine with the fact that your phone likely has GPS, and that it needs to send a constant beacon, has things like accelerometers, altimeters, and other sensors ...

      Oh, and don't forget the link the GP includes is for the UK, which means they could fill in the gaps with video surveillance.

      My guess is it is possible to fairly accurately reconstruct your movements by combining all of these things.

      None of this stuff is designed to be kept secret from the cell company, and the EULA of all those shiny apps says they can access it, and probably are doing so constantly and reporting it somewhere.

      The technology we find so convenient is quite readily used against us. Both because it tells everything about what you do, and is readily obtained by law enforcement, even if they ignore the laws to do it. Because they can always use those Stingray things.

      Nobody should be the least bit surprised. Welcome to the creepy distopian future.

      There's a chance the GP is bragging and pulling your leg. But I have no reason to disbelieve that modern surveillance can do all he claims ... we've helped build the infrastructure required for this by not being able to live without smartphones.

      If you're thinking this is all implausible, then I'm afraid you've really not been paying attention to what's happening lately.

      --
      Lost at C:>. Found at C.
    10. Re:Cell site records shouldn't be allowed at all. by gstoddart · · Score: 2

      You should trust prosecutors as much as you trust law enforcement isn't committing perjury by doing parallel construction: not at all. The truth and the law is entirely malleable.

      Unfortunately, once a judge rules it admissible, the onus is on you to provide your own expert to refute the data. Which means if they really want to convict you, they can probably fabricate the data, and the rest is just truthiness.

      Or, alternately, they might actually get a conviction by providing actual data and convicting a guilty person.

      If it wasn't so damned depressing, this game would be fun ... now there's almost nothing so far fetched as to actually be crazy, and now the most paranoid theories are plausible, and rooted in fact.

      Scary shit, isn't it? Turns out the tinfoil doesn't do a fucking thing.

      --
      Lost at C:>. Found at C.
    11. Re:Cell site records shouldn't be allowed at all. by AHuxley · · Score: 2

      Another public news source if you want. Italians Detail Lavish CIA Operation (June 26, 2005 )
      https://www.washingtonpost.com...
      '...and electronic records that enabled Italian investigators to retrace their movements in detail."
      "... who reported that by piecing together records of those phones' electronic signals they were able to trace the route of the van as it headed"
      The idea is that movement and time fills in the map at that human or car level per city street.
      A person of interest walks in a park and sits down. A journalist spends 10 or 20 mins with them, the whistleblower is identified. Overlapping location, maps, logs and time stamps with the right software.
      That mapping software was once nation state only but is now within a city or state or county budget per year.
      The "to the second" is from the cell tower and a phone been in contact with the billing, location and availability to make or get a call per user quickly. All logged for a long time (months and months and .. longer).

      --
      Domestic spying is now "Benign Information Gathering"
    12. Re:Cell site records shouldn't be allowed at all. by drinkypoo · · Score: 1

      Pure speculation: two towers can triangulate, three more so,

      There is no need whatsoever for more than two towers because cell sites use sectored antennas. They know what side of the towers you're on. They can localize your position to a pretty narrow arc (just a few meters wide) with juse one tower.

      --
      "You're right," Fisheye says. "I should have set it on 'whip' or 'chop.'"
    13. Re:Cell site records shouldn't be allowed at all. by IamTheRealMike · · Score: 1

      Triangulation and the fact that cell towers have multiple directional aerials.

    14. Re:Cell site records shouldn't be allowed at all. by edtice1559 · · Score: 1

      These devices certainly can leak incriminating information. But since most of us are law-abiding it is way more likely that our mobile devices will provide exonorating evidence than incriminating. The government has gotten good at using the information offensively. The private sector just isn't as skilled yet in defensive use. If your wife comes up dead, you are always the first suspect. If you can really show that you were in Cleveland on business that day, probably saves the hassle of a trial. If the government wants to hold you on terrorism charges, cell tower data becomes meaningless. The criminals will eventually get good at faking this data. Hire a courier to carry a package across town, pay in cash. Bury your phone in the box and you've got an alibi. But for most of us most of the time, our activities are innocent and documenting that fact is probably a net benefit.

    15. Re:Cell site records shouldn't be allowed at all. by ihtoit · · Score: 1

      the prosecutor is not a forensic expert. He says what he sees. If he is told that a CSD map is accurate he's paid good money for that, he must trust it before he presents it to a hall where his career, nay his own liberty, is on the line if he fucks it up and they put that on him. They're not paid ludicrous money because they look good in two thousand Dollar suits, they're paid ludicrous money because their public liability cover costs a fucking fortune.

      --
      Political debates have me rolling my eyes so much I think I got optical whiplash. I should sue. - Foamy The Squirrel
  4. Awesome! (Some restrictions may apply) by Iamthecheese · · Score: 3, Informative

    Now if only getting a warrant were an obstacle...

    --
    If video games influenced behavior the Pac Man generation would be eating pills and running away from their problems.
    1. Re:Awesome! (Some restrictions may apply) by Anonymous Coward · · Score: 1

      That depends, Judges are supposed to review the warrant for lawfulness and necessity. In places/cases where the police are doing their job correctly it is just a review to make sure they are following the proper procedures and applicable laws. In places/cases where the police/prosecutor are overstepping their authority or abusing their position and can't justify the need for the warrant the Judge is most definitely are supposed to reject the warrant. Sadly for quite some time most Judges would sign off on almost any warrant that crossed their desks, its been so bad in some cases that there are court cases which the warrants were found to be completely invalid. Unfortunately even in cases where the warrant is proven invalid the courts have ruled that evidence collected in the search is "still admissible" because "officers had reason to believe the search was legal" via the warrant (apparently not knowing the law IS justification for breaking the law). Thankfully many Judges are starting to come around to the fact that the scales have tipped too far to the advantage of the government, there have been some fairly big cases where Judges threw out a majority of the charges and even verbally berated the prosecution for their actions. Even SCOTUS has been making quite a few halfway decent rulings, interspersed of course with some terrible ones.

  5. Mosaic theory by ToasterMonkey · · Score: 1

    The mosaic theory wikipedia page (on the intelligence strategy) from the summary is not even REMOTELY close to the Fourth Amendment mosaic theory from the article, that the opinion relies on: http://repository.law.umich.ed...

    So whoever made that mistake should also know the Fourth Circuit is talking about the paper, not the D&D stat.

  6. Re:is the 4th Circuit forgetting the Sunset Clause by ihtoit · · Score: 1

    NO THEY DO NOT.

    Where foreign intelligence gathering is concerned, the target is not afforded Constitutional protection. Period. He is in time of war, suspected hence assumed guilty until proven innocent (remember this is a time of war, are you going to issue a suspected spy with a loaded firearm and a counterfeit passport?) of espionage.

    --
    Political debates have me rolling my eyes so much I think I got optical whiplash. I should sue. - Foamy The Squirrel