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DC Court Rules Tracking Phones Without a Warrant Is Unconstitutional (cbsnews.com)
An anonymous reader writes: Law enforcement use of one tracking tool, the cell-site simulator, to track a suspect's phone without a warrant violates the Constitution, the D.C. Court of Appeals said Thursday in a landmark ruling for privacy and Fourth Amendment rights as they pertain to policing tactics. The ruling could have broad implications for law enforcement's use of cell-site simulators, which local police and federal agencies can use to mimic a cell phone tower to the phone connect to the device instead of its regular network. In a decision that reversed the decision of the Superior Court of the District of Columbia and overturned the conviction of a robbery and sexual assault suspect, the D.C. Court of Appeals determined the use of the cell-site simulator "to locate a person through his or her cellphone invades the person's actual, legitimate and reasonable expectation of privacy in his or her location information and is a search."
As usual, TFA is useless. Why didn't the cops get a warrant in this case?
They're not a suspect. There's no warrant. If they had cause to suspect someone, they could probably go get a warrant.
Assume that if the cops or feds don't need a warrant, they're doing it all the time to everyone and can use that against you whenever they see fit. Are you ok with the city cops keeping a database of everyone's location at all times?
If they do need a warrant, assume the cops and feds are doing it whenever they can to everyone... but can't use that in court so they find something else to nail you on. See: Parallel Construction.
As your "papers", safe and secure inside your house, move online, you do indeed maintain the expectation of privacy you did in your home. And in any case, your papers are separate from your home in the expectation of privacy.
The Founding Fathers couldn't have foreseen computers tracking everybody in a dozen different ways, from cell phones to license plate recognition to face recognition to cameras on every corner, all being fed into a machine panopticon for the government to watch you. The days when "well, you have no expectation of privacy" in data handed to a corporation need to come to an end.
(-1: Post disagrees with my already-settled worldview) is not a valid mod option.
Did some rule go into effect that these cell site simulators cannot be called Stingrays in public? Because there have been plenty of topics here before about Stingrays and this is the first time at all that 'Stingray' isn't used at least once in the main topic to refer to them.
I know that the company that makes Stingrays wants NO public discussion of them. Police departmens have even withdrawn cases when the discovery process would have forced public discussion of Stingrays.
It's actually time for a teardown video of one of these critters...
No, the phone absolutely does not work this way. The location is implied by the tower. If it worked the way you say, we wouldn't have been able to use cell phones prior to GPS tech on smartphones since the phone wouldn't know where it was. How did this get modded up? ROFL. Mod moderator down.
Sure, for a cellular phone to work the phone must announce it's location to the carrier. The issue at hand though is that the phone does not have to tell the government where it is located to work. The carrier should not have to tell the government where a phone (and therefore the person carrying it) is located without a warrant. Also, the government cannot set up a fake cell site to scoop up the locations of people without a warrant.
I'm trying to think of how these fake cell sites could be used any more after a ruling like this. For these things to work they have to announce their presence to every phone in range and just kind of hope the person they are looking for is in range. In the process though they'll be grabbing the phone numbers, locations, and perhaps more information from every cell phone in range. In a large city this could easily be thousands of people as they move in and out of range. How can a fake cell site be made to work and not scoop up all this information?
I doubt that this will be the end of this nonsense, but it should make the government think real hard about doing stuff like this again.
I am armed because I am free. I am free because I am armed.
Pervasive surveillance used to require a warrant. A stingray is pervasive surveillance.
Police in public places limited to things they can see and hear, even with amplified means, does not require a warrant.
An active cell-phone is no different in this regard from a person shouting, for example.
Sure it is. An active cell phone, idly waiting for an incoming call or to place one, is not detectable by human ears.
There's a legal concept calleed Plain View Doctrine. Previously this concept has been applied to curtilage, aka the private property surrounding a house that police may have to tread-upon in order to knock at the door. Officers are allowed to take actions if they, with their natural human senses, detect a crime, but they're not allowed to use tools and if they have a clear path to the door, they're not allowed to go around peeking into windows, they are supposed to stick with the path. Even using dogs when walking up to a house is not permitted.
It's no stretch to consider that your argument violates Plain View Doctrine since an officer cannot, with his natural senses, detect a cell phone nearby or identify a particular cell phone. He may be able to get a warrant to use a technology like stingray, or he may get a warrant to compel the carrier to provide him with data, but that's another matter.
Do not look into laser with remaining eye.
Presumably the cops thought they didn't need a warrant.
A lot of the legal framework in the US around these matters dates back to the time of the Bill of Rights. In general courts have viewed police suspicion as something that doesn't violate your rights as a citizen. For example if a plainclothes cop decides you look suspicious and tails you for awhile, that's perfectly OK. He doesn't need a warrant.
The problem with technology is that we can now automate that process, and that often changes its character. A cop trailing you to see where you goes is a self-limiting process. It'd be too expensive and time consuming to do to everyone. But since everyone carries a phone now, the police actually can follow them everywhere, all the time, and it would cost them practically nothing. That's way more intrusive, even though on a case by case basis you're doing the exact same thing: keeping tabs on where someone goes.
And here's another wrinkle. Since you divulge your position to the phone company, under US common law it's not your private information. If the phone company decides to relay your position to the cops, it's completely kosher unless that disclosure is forbidden by statute or the court gets creative.
What technology allows the police to do obviously violates the spirit of the Constitution; so what the court has done is what courts sometimes done in similar cases (like contraception): try to infer underlying principles from the Bill of Rights and extrapolate them to the current situation under the 9th Amendment.
Post may contain irony: discontinue use if experiencing mood swings, nausea or elevated blood pressure.
It's not even a honeypot. A honeypot requires intentional penetration of a system one knowingly is not welcome into.
This is arguably jamming and is an illegal use of spectrum that the device owner is not entitled to use.
Do not look into laser with remaining eye.
No, it's consistent with previous rulings regarding GPS trackers without a warrant, which was ruled unconstitutional. They can get a warrant fairly easily if they actually have suspicion and are not on a fishing expedition, in some jurisdictions it can be done over the phone via an on-call local magistrate or judge. Same for GPS trackers. It's not that terribly large of a limitation actually.
>Sure, for a cellular phone to work the phone must announce it's location to the carrier.
No.
The cell tower announces its location to the phone.
The phone announces its desire to connect to the tower.
If there's an ongoing session, a number of towers may already be informed of your phone and your phone has a session reference it can use so the new tower can grab the session from the previous tower as handover occurs.
The business of a tower inferring your phone's location came later and was all to do with selling 'location services', which of course, GPS undermined. Who would pay for that?
I should use this sig to advertise my book ISBN-13 : 978-1501515132.
USSC did conclude, that the use of GPS-trackers requires a warrant (see, this is how you cite things.)
But that — unanimous — decision explicitly said:
No such occupying private property took place in the case in TFA, which fully invalidates your argument.
In Soviet Washington the swamp drains you.
Not likely. There would be little support for this except for Alito and Thomas (who were nominated long before Trump).
Gorsuch is unlikely to support unwarranted searches given his record. You apparently didn't spend time reviewing his opinions.
Do you spend much time thinking about these things, or do you just ejaculate on this forum randomly?
Actually, about fucking time.
My ism, it's full of beliefs.
Expect a lot of good faith exception, exigent circumstances terms getting more use soon.
Domestic spying is now "Benign Information Gathering"
In the past a new powerful mil grade network would become the new local cell network for an area. Every phone in the area would connect to the new more powerful cell network.
That worked well for law enforcement for a while. Most people did not notice the unexpected extra service quality they got with no carrier investment.
Over time app maps got created of cell networks that would show any strange new service that was not part of ongoing carrier upgrades.
Apps started mapping the powerful law enforcement cell networks been activated in areas served by very average cell towers.
The next gen try hard to look like real cell towers, like any other telco in the area. Less of that new network quality and jump in power but still able to take over all cell connections in the area.
Voice prints is the real fun part. What was once used for nations to collect on other nations most interesting people is now been offered to any state or city with ongoing federal/state/city police funding levels.
Domestic spying is now "Benign Information Gathering"
I don't know, how you define the term "pervasive surveillance". But I do know, that use of stingray to target a suspect's phone is no different from following a suspect on the street. And that does not require a warrant — and never did.
This court disagrees, and so do I. Using stingrays should absolutely require a warrant, and is far, far different from walking down the street behind a suspect. This decision by the D.C. appeals court does indeed reverse past precedent set by other courts that have allowed unreasonable encroachment on our right to privacy, and this is a good day for anyone who values privacy and limiting the ever-watchful eye of our government. They aren't saying you can't use stingrays, i don't think, but they are implying that you need to get a warrant, which is not that difficult or prohibitively time consuming.
This is a hacked account, for which the owner can not be held responsible.
No. The cell tower announces its location to the phone.
No. The cell tower announces its existence to the phone. The phone doesn't care where the tower is.
The phone announces its desire to connect to the tower.
Yes. At that point, the cell tower becomes interested in where the phone is so it can optimize service. I.e., use phase array antenna systems to direct the signal toward the phone.
The cell tower uses the same phased array antennas to figure out what direction the phone is, and the received signal strength to estimate distance. It can also use time-of-flight or response time of the phone for distance. Distance is important because it changes the signal timing in LTE.
The business of a tower inferring your phone's location came later and was all to do with selling 'location services',
No. It came along later in cell history, but not for the reason you claim. The early cell technology was not advanced enough to do the location.
Re carrier
A lot of the trusted telco staff with access to law enforcement request logs might not even be in the USA.
Such workers are open to their own faith, cults, other questions of their own nations national security or suggestions by outside groups.
Working with a telco that works in the USA but could be a security risk is not an option for US law enforcement.
US law enforcement will also not risk access by US court workers as court papers and warrants take time to get approved.
More secure to just have a small team of federal, private contractors and city/state police doing collect it all in an area.
No warrant details, no lawyers, no courts, no telcos to have to share sensitive law enforcement methods and data with.
Domestic spying is now "Benign Information Gathering"
I don't know, how you define the term "pervasive surveillance". But I do know, that use of stingray to target a suspect's phone is no different from following a suspect on the street.
It is very different, so much so it's not even close enough to resemble the same thing.
This is like the police knowing for a fact a single person committed a crime (one human body on camera, covered head to toe in clothes) and they suspect that single person is your neighbor.
Using a stingray is akin to arresting your neighbor, you, and every other person that lives on your street and holding you in jail for days, simply because it takes that long to question your neighbor.
Stingrays do not and can not physically track a suspect. Stingrays track every single last innocent and unsuspected citizen in a 5 mile radius around them, minus the suspect that they hope is coincidentally in that same area.
Someone claimed you could hear an Automatic Teller Machine printing money before it was dispensed. An early troll.
It's not even a honeypot. A honeypot requires intentional penetration of a system one knowingly is not welcome into.
This is arguably jamming and is an illegal use of spectrum that the device owner is not entitled to use.
No, while arguable, it is not reasonable to argue that this equates more closely to jamming than a honeypot. With new technology and new ways to exploit the flaws of old technology, it takes time for courts to agree on what is permissible and, as such, we may see conflicting decisions, like this one. This is where jurists need to be educated on the technical details and need to consider the broad intent of other laws. That's where interpretation of the constitution comes into play, since times change and our forebears could not possibly have predicted every development over the years.
This is about a reasonable expectation of privacy more so than the technical workings of modern cellular protocols. If there were no alternative ways to track suspects or it were impossible to get warrants to use stingrays, this court might have rendered a different decision, but I believe this was a correct and just outcome.
This is a hacked account, for which the owner can not be held responsible.
Not likely. There would be little support for this except for Alito and Thomas (who were nominated long before Trump).
Gorsuch is unlikely to support unwarranted searches given his record. You apparently didn't spend time reviewing his opinions.
Do you spend much time thinking about these things, or do you just ejaculate on this forum randomly?
I don't have nearly as much faith in Gorsuch to stand up to the conservative Right. As accomplished and consistent as he is, he seems to me to be less concerned with the underlying intent of laws on the books (including the Constitution) than his own misguided ideals. Frankly, he is a sexist, not a defender of the rights of all people, so I find it hard if not stupid to trust him.
This is a hacked account, for which the owner can not be held responsible.
Who cued the idiotic AC comments?
This is a hacked account, for which the owner can not be held responsible.
I believe you definitely pointed out the crux of the issue. It isn't the fact that it can not be used in a court of law without a warrant, it is the fact they are using it all the time. IMO, this is pretty much akin to any other monitoring device implemented by the legal system AFTER a conviction.
I believe the handset provides information to the tower about power level it is seeing.
the pocket of my pants where I keep the phone is private property, the data kept on the phone is private property, the computing environment on the phone used to access the data is private property.
Yep. And none of it was “physically occupied” by the government...
In Soviet Washington the swamp drains you.
Further down though, there is the clarification that the search has to be "reasonable" which the NC Supreme Court did not address. Hence they vacated the judgement back to the lower court to address the issue as to whether attaching a GPS tracker for LIFE, not just some arbitrary time frame in this instance, is to be considered reasonable.
I could see this decision to be reversed if the NC court system demonstrates that it is reasonable as this plaintiff was a repeat-offender for the same crime, so this actually could be considered reasonable.
This is the next problem. This E911 law needs to be more easily and automatically circumvented by default, if we can't get it repealed. And we can't get it repealed. I think that law is a bad idea, and yet there are some pretty obvious and irrefutable arguments in favor of it. It's ambiguously bad, and that's enough to keep it forever.
Therefore, we need our phones to finally stop being phones. To put it in AppleSpeak, we need it to be easier to upgrade iPhones to iPod Touches. Or from Android phones to 5" Android mini-tablets. Then tack on the cellphone transceiver as an aftermarket add-on... which people who live in ubiquitous-wifi areas might literally not bother doing.
For this to work well (have add-on peripherals become viable; currently all our phones totally suck to an embarrassing degree, compared to even a 30-year-old desktop) we need standardized form factors and for "build your own white-box" to be happening. But the fucking market isn't supporting that. It's hard to get there, yet it's so damn attractive. Oh well, it's something to strive for and encourage. Today's phones suck so much, in so many ways, and this would solve many of the problems, including the always-being-tracked problem.
"Believe me!" -- Donald Trump
Police in public places limited to things they can see and hear, even with amplified means, does not require a warrant.
reasonable expectation of privacy (as deemed by a judge if push comes to shove). If you're in public, you don't have that. If you're in your own yard behind your own fence with no-one in sight, or in your own closed house with no open widows, it doesn't matter if the cop is in a "public place" and uses a spy satellite or a device that tracks you through a wall. That's invading your privacy. And if they don't need a warrant to violate that privacy, you can assume that they'll have continuous surveillance of everyone at all times.
Personally, I think there's a sociological basis for the "right to anonymity". Like let's say it'd be a fine to dox someone or call someone out in a crowd. But that leads to a big rats nest of legality and enforcement, so it's probably not going to happen.
that you need to get a warrant, which is not that difficult or prohibitively time consuming.
For individual suspects. Yes. That's the point.
It's supposed to be difficult and prohibitively time consuming to go get a warrant for everyone.
Needing the know the location is to be able to route network initiated paging to the phone.
The phone does not need to know the tower location, nor does the tower need to know the phone location for this.
Otherwise, which tower would you let broadcast it.
Are you serious? The tower to which the phone is connected. You do realize, I hope, that phones make a connection to the cell site even when you aren't actively making a call. They register with a site, which is how the phone knows who the carrier is, what services are available, and can get SMS/data.
Phased array aiming is usually done by inverting the channel, the position is never directly computed.
It may never be reported in human coordinates. I don't know, it doesn't matter. The location is, however, "computed", since it is relevant to optimizing the signal and minimizing power needed for the connection.
The best pattern is not necessarily a beam pointing to you, in a non-line-of-sight scenario.
The best pattern is almost always a path going back the same way the incoming signal appears to come from. That is very very often a direct line of sight, but even if it is not, any indirect path from the low power phone will cause an incorrect position. That incorrect position will probably be fixed if the phone moves (as mobile or portable phones tend to), and still generates the optimal return path.
Heeeeey, you're right, the two aren't the same.
and the suspicion must be associated with the specific individual.[3]
So, if stingray were only allowed only when they could prove probable suspicion, then that'd do a lot to ease my qualm. But, as you noted, they didn't even need that. Maybe a later case will refine it to need probable suspicion rather than probable cause, maybe it won't. Either way, this is still a good change.
I certainly prefer not to think about it,
The why are you even commenting here?
but I don't see, how it is different from officers with phenomenal visual memory patrolling the streets — and sharing their observations with each other in the evening.
There are some real-world limitations in the fact that they can't employ a 1:1 citizen to police officer ratio to follow everyone at all times. (And then, of course, a second and third shift to follow the off-duty cops). These sort limitations due to reality have an impact on what's legal and what's not simply due to sociological ramifications. Paying a kid $10 to mow your lawn is technically illegal as he doesn't report income tax and it's acknowledged undereconomy. Cops and Feds have power over regular citizens, and if they get too much power, or their power is too pervasive, it'll make the inmates/members of society go crazy. If they automate cops, I at least want the server racks to wear a badge and a comical bobby-hat with billy club hanging next to them. Possibly with googly eyes.
Personally, I don't think cops should really have any powers above and beyond normal civvies.
No, it is not. Nobody was arrested or even talked to.
How is this different from police following every single and unsuspected citizen in an area? Or, indeed, video-recording everything with security-cameras?
In Soviet Washington the swamp drains you.
No, it is not. Nobody was arrested or even talked to.
Re-read what I said then and try to comprehend analogy.
Because you are incorrect, my example explicitly involved one person being arrested.
Here was my example:
arresting your neighbor, you, and every other person that lives on your street and holding you in jail for days, simply because it takes that long to question your neighbor.
The very first three words involve an arrest in that example. So yes, in my example, someone was arrested and even talked to (that is what "question your neighbor" means, talking to them)
How is this different from police following every single and unsuspected citizen in an area?
It isn't different, both are not legal without a warrant, which was the entire point.
If I am not being detained as a suspect, or being placed under arrest, it is perfectly legal for me to go to a place the police would be trespassing to enter, and it would be a crime for them to follow.
Linking back to the example I made, not just my house for me, but everyone on the street that isn't the actual suspect are supposed to be free from surveillance in and on their own property.
Or, indeed, video-recording everything with security-cameras?
That example has an explicit exception to the wiretapping laws so that it isn't illegal anyways, for police or not-police the same.
There is currently no such blanket exception for wiretapping RF signals.
You can argue those laws make no technical sense all you want and will get no complaint from me, but at the end of the day those nonsensical laws are still the laws.
The simple fact of the matter is ALL of these laws can have a police officer excluded from them just by getting a warrant for the act.
If they would only bother to utilize it, none of these things would be illegal for the police to do.
The entire point of complaint is the police can't be bothered to follow the law they are at the same time claiming to be upholding.
And the court agrees that interpretation of the law is correct.
That's right, only respond to the one hyperbole in a thread full of valid criticism.
With selective cherry-picking EVEN YOU can stroke that ego. Bravo, you sure showed us what for.
How is this different from police following every single and unsuspected citizen in an area?
As stated:
"Wrong, stingrays follow you into your house too. And everywhere else."