Stingray Case Lawyers: "Everyone Knows Cell Phones Generate Location Data" (techdirt.com)

An anonymous reader writes with news that the Maryland Attorney General is arguing that anyone who has ever used a smartphone knows it's tracking them, so no warrant is needed for stingrays. Techdirt says: "Up in Baltimore, where law enforcement Stingray device use hit critical mass faster and more furiously than anywhere else in the country (to date...) with the exposure of 4,300 deployments in seven years, the government is still arguing there's no reason to bring search warrants into this. The state's Attorney General apparently would like the Baltimore PD's use of pen register orders to remain standard operating procedure. According to a brief filed in a criminal case relying on the warrantless deployment of an IMSI catcher (in this case a Hailstorm), the state believes there's no reason for police to seek a warrant because everyone "knows" cell phones generate data when they're turned on or in use.

The brief reads in part: 'The whereabouts of a cellular telephone are not "withdrawn from public view" until it is turned off, or its SIM card removed. Anyone who has ever used a smartphone is aware that the phone broadcasts its position on the map, leading to, for example, search results and advertising tailored for the user's location, or to a "ride-sharing" car appearing at one's address. And certainly anyone who has ever used any sort of cellular telephone knows that it must be in contact with an outside cell tower to function.'"

Comments

Everyone "knows", the new legal standard

[Falconnan]

The mere fact that the data exists is not itself the point. It is completely reasonable to expect some degree of privacy in one's communications regardless of how easily they are intercepted (which everyone "knows"). Physical mail is easily intercepted and read too. Is this the new standard that will allow the police to randomly read an entire neighborhood's mail as well? What ever happened to "probable cause"? But then, I was born in the 20th century, so I guess I'm just old-fashioned.

Re:Everyone "knows", the new legal standard

[msauve]

First, most cell phone companies have explicit privacy policies, so there is a reasonable expectation of privacy. Second, the cops have no license to transmit on cellular frequencies - so can't legally use a Stingray without a warrant, regardless. (when an individual uses a cell phone, they're transmitting under authority of the carrier's license)

Re:Everyone "knows", the new legal standard

[TheCastro1689]

Bad analogy, since I can't actually see or hear your phone communication without assistance or breaking the law the police should need a warrant. Just like you mailing an envelope, if I go into your mail or the recipients mail and open it I have broken the law.

Re:Everyone "knows", the new legal standard

[rickb928]

So if you happen do be in a restaurant and overhear someone explaining how their company is 'going public' tomorrow, and they have orders lined up from a specific investor at double the initial pricing, it's not merely permissible for you to take advantage of that overheard conversation, but to act on the information and contact that investor, offer them a slightly better deal, taking your profit. Not knowing that this individual was talking to their broker, who then, after you left to find a private place and make your move, telling them that was improper and could not be done...

And this is ok, because it's a public place. For the sake of argument, let's pretend the situation I described is reasonable and pass on the legalities...

The FCC has issued rules specifying that overheard or intercepted communications cannot be divulged or used to advantage (Section 705, for instance) for some time.

While recording conversations in public places is generally held to be permissible, doing so with conversations that are reasonably believed to be private by the participants is illegal under (Wiretap Act, 18 U.S.C. 2511 specifically). From an article online:

"In response to the public outcry about the government’s covert recording of the activities of political activist groups in the 1960s, Congress enacted the Wiretap Act as part of the Omnibus Crime Control and Safe Streets Act of 1968. (18 U.S.C. 2510.)"

Apparently we need to revisit this act. Not that our government is secretly recording the activities of groups or individuals suspected of some acts, specified or not, but that the government is recording everything it can, indiscriminately.

No, they should not be allowed to do so.

Missing the point?

[stoborrobots]

He's missing the point. Everyone knows that the post office handles all your mail, but it's still not allowed to tell the police what you're receiving without a warrant. The existence of a record does not imply the availability of that record to law enforcement or the government.

By their logic

[RavenLrD20k]

By their own logic I should have just as easy of a time to be able to set up my own cell towers and siphon in all the location data that comes into it, and the government can't say boo about it. I should be able to know where everyone who connects to my personal cell tower is located at that moment, in an effort to stalk my girlfriend without her ever knowing about it. As noted in other threads already: They can't legally expect to be able to go through the mail of an entire neighborhood at the post office level, as such, they should not expect to be able to do essentially the same thing with setting up their own cell towers.

Removing the SIM doesn't change the IMEI.

[tlambert]

Removing the SIM doesn't change the IMEI.

Hailstorm tracks by IMEI; SIM data is incidental. Someone should demonstrate tracking him with his SIM removed. I expect he might be ... disturbed.

Re:Somebody should track the Maryland AG's locatio

[Phreakiture]

Your suggested interval is too much work, BUT...

If someone were to figure out the MAC address of his cell phone's WiFi interface (assuming it isn't an Apple that scrambles MAC addresses), a volunteer-run network of consumer-grade routers scattered around the city could get a pretty good fix on his location. I'm using the term 'network' very loosely here, of course; it's a network in that they're affiliated, not in that they're functionally connected. It would be 100% legal and inexpensive to do.

"Everyone knows" THAT WARRANTS ARE REQUIRED!

[mrchaotica]

Even if cellphones are technically trackable, what "everyone knows" is that the government is legally required to refrain from using that information without a warrant. You know, the whole "rule of law" and all that? Any government official who has problem with that concept should be removed from office.