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."

Comments

Why no warrant?

[xxxJonBoyxxx]

As usual, TFA is useless. Why didn't the cops get a warrant in this case?

Re:Why no warrant?

[uvajed_ekil]

As usual, TFA is useless. Why didn't the cops get a warrant in this case?

I don't have enough knowledge about this particular case to speculate, but there are three typical reasons for conducting a search of some kind without a warrant: 1. Courts don't require it under a given set of circumstances. 2. The cops were too lazy or in too much of a hurry to bother. 3. They simply thought they didn't need one because they are incompetent.

This actually sounds like a combination of the three, but more #1 than #3; other courts have previously allowed lots of warrantless phone tracking, so the cops figured they didn't need a warrant and/or didn't see a need to worry about crossing every "t" or dotting every "i." No investigator expects his case to go awry and set a significant (if preliminary) precedent, so their misjudgment shouldn't be construed as sloppiness. Anyway, I'm damn glad anytime a court upholds our reasonable expectation of privacy and reminds other arms (or tentacles) of the government that they are there to protect the rights of the masses, even when it means the cops might have to work a little harder to nail the bad guys. Surely law enforcement agencies won't like this decision (which will be tested again), but finding ways to work with inconveniences like our rights is a part of their job. Our rights don't only exist when it is convenient for cops to recognize them.

Re:Why no warrant?

[MrKaos]

As usual, TFA is useless. Why didn't the cops get a warrant in this case?

Specifically, because this applies not just to the US, but the UK, Canada, Australia and New Zealand, Telecommunication intercepts.

First, politicians can pass laws that are unconstitutional, however they are bits of paper because they violate the constitution which are the founding principles of a nation. Effectively, they aren't laws at all because they are unconstitutional.

In this context, after 9/11, a series of anti terrorism laws were passed in these countries that violated the constitution. In the US Bush by-passed the Attorney General by using his personal attorney and once the political elite of the Bush cabal saw they could pass laws this way without anybody objecting they went crazy establishing the surveillance state we are now subjected to. The reason I know this is because I read and analyzed hundreds of pages of these "laws" and wrote submissions about them.

The political elite came after Telecommunications and the freedom of speech and association that came with it around 2004. I also analyzed these laws which read like a fundamental attack on the constitutional foundations of all western democracies, or what was left of them. Of course the trick for them is not to act on the power in a big an obvious way but to inflict a death by a thousand paper cuts.

So thirteen years later, laws we saw framed under the guise of being used only for the intelligence community to track terrorists is now being used against the populous to track common criminals without using due process which people may not object to, because it's a criminal however just because the police are tracking a criminal doesn't mean they are allowed to commit a criminal act.

For further context, traditionally telecommunication intercepts were treated more seriously than search warrants by judges until anti-terrorism laws made them a moot point.

This is how politician by-pass the will of the people and erode the freedom that a nation is built on with attempt to neuter the constitutional values that are inconvenient and antagonistic to their power over the population.

Re:Not even to locate?..

[HeckRuler]

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.

Great expectations

[Impy the Impiuos Imp]

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.

Re:So... no more cell phones?

[blindseer]

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.

Re:Not even to locate?..

[aaarrrgggh]

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.

Because US law is archaic.

[hey!]

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.

Re:Because US law is archaic.

[hey!]

OK, that's a good starting point.

But what if the common man in the street could, in principle, buy information on someone else? Or could in principle assemble that information if he had sufficient time and resources?

You see, a government that is limited to what the common man in the street can do can be far more intrusive because they have more resources -- ditto for corporations. You have to limit government more than you limit the common man in the street. And you probably have to limit what very rich men in the street can do too.

Re: Because US law is archaic.

[hey!]

Yes, I'm aware of this, but it's not clear to me whether the GPS coordinates are transmitted continually to the tower or only during a 9-1-1 call. It could be either, and to know for sure you'd have to look at the technical documentation. However even without GPS the companies have the capability of locating a handset by radiolocation techniques.

About time

[MrKaos]

Actually, about fucking time.