Supreme Court: Warrant Generally Needed To Track Cell Phone Location Data (cnn.com)

daveschroeder writes: The Supreme Court on Friday said the government generally needs a warrant if it wants to track an individual's location through cell phone records over an extended period of time. The ruling [PDF] is a major victory for advocates of increased privacy rights who argued more protections were needed when it comes to the government obtaining information from a third party such as a cell phone company. The 5-4 opinion was written by Chief Justice John Roberts siding with the four most liberal justices. It is a loss for the Justice Department, which had argued that an individual has diminished privacy rights when it comes to information that has been voluntarily shared with someone else.

Comments

Good news!

[Anonymous Coward]

Now, what about things like license plate trackers that track where your car goes?

Re: Good news!

[Darinbob]

That's the thing about the supreme court, once appointed "for life" the members don't always follow the stereotypical patterns anymore

Also they tend to stick to some core ideals even if the general voting public has swayed their opinions over time and normal politicians are following along. Some a justice who may have been seen solid defender of conservative values a decade or two ago starts to face criticism of being too liberal since the litmus tests keep changing.

In general, protection of privacy from the government has been a solid conservative value for a very long time, it's only more recently that some strong strong law-and-order types are giving increased government power more priority than their stated conservative ideals. After all, you get more votes by promising to do something about crime than you can get by sticking to conservative ideals. If Reagan showed up today he'd be accused of being a RINO.

Never forget

[PopeRatzo]

The 5-4 opinion was written by Chief Justice John Roberts siding with the four most liberal justices. It is a loss for the Justice Department, which had argued that an individual has diminished privacy rights when it comes to information that has been voluntarily shared with someone else.

So, the liberals on the court voted in favor of your right to privacy and the "conservatives", including Trump's boy Gorsuch, voted that fuck your privacy rights, the police need to track you without a warrant. Also, the Trump Administration argued that your freedom isn't as important as the right of the government to track you.

Remember that the next time some Republican or Trumpist tells you that they're all about the rights of the individual and smaller government. Republicans will always be the party of authoritarianism and the elite.

Re:Never forget

[Anonymous Coward]

You mean the court case that was appealed to the Supreme Court by Obama’s Justice department?

I hope the Russian vodka is worth it popecrapso

Re:Never forget

[schwit1]

Gorsuch didn't like that the Roberts ruling was too vague and incomplete on addressing prior fourth amendment cases.

The Court today says that judges should use Katz’s reasonable expectation of privacy test to decide what Fourth Amendment rights people have in cell-site location information, explaining that “no single rubric definitively resolves which expectations of privacy are entitled to protection.” Ante, at 5. But then it offers a twist. Lower courts should be sure to add two special principles to their Katz calculus: the need to avoid “arbitrary power” and the importance of “plac[ing] obstacles in the way of a too permeating police surveillance.” Ante, at 6 (internal quotation marks omitted). While surely lauda- ble, these principles don’t offer lower courts much guidance. The Court does not tell us, for example, how far to carry either principle or how to weigh them against the legitimate needs of law enforcement. At what point does access to electronic data amount to “arbitrary” authority? When does police surveillance become “too permeating”?

Re:Never forget

[Anonymous Coward]

Remember that the next time some Republican or Trumpist tells you that they're all about the rights of the individual and smaller government. Republicans will always be the party of authoritarianism and the elite.

Came to say exactly this ... they're in favour of small government, except when it comes to the surveillance state, enshrining laws which are pushed by religious people, and protecting the profits of corporations.

They are consistently against privacy, Constitutional rights, and anything which limits government intrusion on your life except for their own special little exemptions to that.

The Republicans serve religion, corporations, and the wealthy -- despite their claims to want to protect individual rights from the government.

And, really, half of them are completely fucking batshit crazy and have given us the "post fact" world where belief and opinion is supposedly just as good as facts and reality.

Re:Never forget

[PopeRatzo]

Gorsuch didn't like that the Roberts ruling was too vague and incomplete on addressing prior fourth amendment cases.

Gorsuch voted in favor of the government's right to track your location without a warrant. You can spin that all you want, but it's in the record books now and you can't refute it.

All the talk of "rights of the individual" and "The Constitution" are lip service. If he supported liberty over tyranny, he could have voted with the liberal majority and written a concurring opinion to clarify his position.

Bootlickers gonna bootlick.

Re:Never forget

[EvilSS]

Also, the Obama and Trump Administrations argued that your freedom isn't as important as the right of the government to track you.

Fixed that for ya. This case hit the supreme court petition list in 2016, with arguments in 2017. That means it started in the lower courts well before that time, and under the Obama administration, then continued under the Trump administration. Either could have dropped it, but they didn't.

Re:Never forget

[SmokeyRobot]

Then don't comment. His dissenting opinion is surprisingly knowledgeable and relevant to the current Information Age in which we live. Try reading. It is amazing.

Re:Never forget

[KixWooder]

and strongly supported by Trump's justice department. Both sides wanted the opposite of this ruling.

Re:Never forget

[Mashiki]

including Trump's boy Gorsuch, voted that fuck your privacy rights,

Did you even read his argument as to why he dissented? Obviously not, otherwise you'd know that he did because he felt that the other opinions were too vague in order to be in favor of it. Go on, read it. Dust off that annotated copy of rulings, and you'll figure it out. When you do, you'll also figure out why you look like an idiot to anyone who's studied law.

Re:Never forget

[magzteel]

The 5-4 opinion was written by Chief Justice John Roberts siding with the four most liberal justices. It is a loss for the Justice Department, which had argued that an individual has diminished privacy rights when it comes to information that has been voluntarily shared with someone else.

So, the liberals on the court voted in favor of your right to privacy and the "conservatives", including Trump's boy Gorsuch, voted that fuck your privacy rights, the police need to track you without a warrant. Also, the Trump Administration argued that your freedom isn't as important as the right of the government to track you.

Remember that the next time some Republican or Trumpist tells you that they're all about the rights of the individual and smaller government. Republicans will always be the party of authoritarianism and the elite.

Did you read the ruling? It's very interesting. This is from the dissent:

"The Court has twice held that individuals have no
Fourth Amendment interests in business records which
are possessed, owned, and controlled by a third party.
United States v. Miller, 425 U. S. 435 (1976); Smith v.
Maryland, 442 U. S. 735 (1979). This is true even when
the records contain personal and sensitive information. So
when the Government uses a subpoena to obtain, for
example, bank records, telephone records, and credit card
statements from the businesses that create and keep these
records, the Government does not engage in a search of
the business’s customers within the meaning of the Fourth
Amendment.

In this case petitioner challenges the Government’s
right to use compulsory process to obtain a now-common
kind of business record: cell-site records held by cell phone
service providers. The Government acquired the records
through an investigative process enacted by Congress.
Upon approval by a neutral magistrate, and based on the
Government’s duty to show reasonable necessity, it authorizes
the disclosure of records and information that are
under the control and ownership of the cell phone service
provider, not its customer. Petitioner acknowledges that
the Government may obtain a wide variety of business
records using compulsory process, and he does not ask the
Court to revisit its precedents. Yet he argues that, under
those same precedents, the Government searched his
records when it used court-approved compulsory process to
obtain the cell-site information at issue here.

Cell-site records, however, are no different from the
many other kinds of business records the Government has
a lawful right to obtain by compulsory process. Customers
like petitioner do not own, possess, control, or use the
records, and for that reason have no reasonable expectation
that they cannot be disclosed pursuant to lawful
compulsory process.

The Court today disagrees. It holds for the first time
that by using compulsory process to obtain records of a
business entity, the Government has not just engaged in
an impermissible action, but has conducted a search of the
business’s customer. The Court further concludes that the
search in this case was unreasonable and the Government
needed to get a warrant to obtain more than six days of
cell-site records. "

Re:Never forget

[Kernel Kurtz]

Did you even read his argument as to why he dissented? Obviously not, otherwise you'd know that he did because he felt that the other opinions were too vague in order to be in favor of it. Go on, read it. Dust off that annotated copy of rulings, and you'll figure it out. When you do, you'll also figure out why you look like an idiot to anyone who's studied law.

So you are saying that rather than vote for it, even though he thought that it is not precise enough, he decided to vote against it and write that it is not precise enough.

Still pretty obvious whose interests he is siding with then IMHO.

Re:Never forget

[PopeRatzo]

Did you read the ruling? It's very interesting. This is from the dissent:

This is a long-standing American tradition that goes back to the Founding Fathers: Use the flowery language of Liberty, but when it comes right down to it, support Tyranny. That's what the dissenters did today.

Re:Never forget

[Your.Master]

Since when do human constructs have no relevance in the real world?

Re:Never forget

[Anonymous Coward]

You all somehow think that departments change with administrations... The Federal government changes VERY little from administration to administration. Sure the heads change, but the workers all know they were there before the head and they will be there after, so changes are slow.

Re:Never forget

[PopeRatzo]

Translation: you didn't read it and you don't care what the legal rationale is.

At the end of the day, it's just rationale. He voted to allow the government to access your location without a warrant. Full stop. Lip service is lip service.

Re:Never forget

[jittles]

including Trump's boy Gorsuch, voted that fuck your privacy rights,

Did you even read his argument as to why he dissented? Obviously not, otherwise you'd know that he did because he felt that the other opinions were too vague in order to be in favor of it. Go on, read it. Dust off that annotated copy of rulings, and you'll figure it out. When you do, you'll also figure out why you look like an idiot to anyone who's studied law.

He can claim all the reasons he wants but that doesn’t make it any more inappropriate for anyone on the supreme court to dissent from this issue. The only consent I can give in this matter is to A) Not have a cell phone and be completely unable to maintain a job or B) give up my personal location data and be able to continue my career. There is no other way to look at this issue. Cell phones and internet have become mandatory parts of life for MOST people in the industrialized world.

Re:Never forget

[PopeRatzo]

This case is the wireless equivalent of "Can the government search your garbage [wikipedia.org] without a warrant after you've put it on the street corner for pickup?" The issue here wasn't if the government needed a warrant to track you as you're mischaracterizing it. It's if the government needed a warrant to obtain personal information you've already willingly given up to a third party.

That is remarkably stupid. Just because you share something with a third party doesn't mean you give up your rights. Yours is the authoritarian argument:

Unlike possessions inside your home or car or on your person, it is not at all obvious that these things enjoy 4th Amendment protection.

With today's Supreme Court ruling, it is most definitely obvious.

Re:Never forget

[orlanz]

No, it isn't. In the garbage case, the government can search your garbage without a warranty. However, they can't do it every single day for a year and aggregate data upon just you to use in a case. That would still require a warrant (Gorsuch actually uses garbage as an example that legally is vague but realistically isn't. An owner would interject if you were to go through his garbage... thus some sort of privacy is expected).

The current case is resting on two foundation cases. Very oversimplifying, but one says a general expectation of privacy means a warrant and the other says if you hand it over to a 3rd party, no warrant necessary. The majority basically said that "expectation of privacy goes up the longer you are tracked" and thus get a warrant.

Gorsuch didn't like that these cases were the foundations and that the guidance to the future was left vague such that different judges could come to different conclusions. He felt there were better foundations to base this on. But that the courts are not responsible for these types of "guessing" and it should be done by Congress. He feels that Congress should enact laws that draw clear lines and where none exist, the courts should not be drawing them because each judge could draw differently. He felt that the court should have set precedent to rely on more foundation aspects of privacy & ownership that the founders relied upon to determine that a warrant would be needed here.

But I think Congress can never keep up with the changing world. And until Congress catches up or corrects a ruling, the Courts are all we have to limit the damage to innocent people. The courts should "decide" to lean conservatively toward the defendant's best interest rather than the government's or plaintiff's. They should require a warrant if it will used to judge someone guilty; unless clearly stated in law that it isn't required. And if it is very vague, then an appeal for final decision at the SC is what is needed. TILL Congress gets their act together on the topic.

Re:Never forget

[Dragonslicer]

including Trump's boy Gorsuch, voted that fuck your privacy rights,

Did you even read his argument as to why he dissented? Obviously not, otherwise you'd know that he did because he felt that the other opinions were too vague in order to be in favor of it. Go on, read it. Dust off that annotated copy of rulings, and you'll figure it out. When you do, you'll also figure out why you look like an idiot to anyone who's studied law.

If Gorsuch thought that a warrant is needed, he would have voted that way. If he did, but didn't like the reasoning that Roberts et al used, he could have written a concurring opinion. The fact that he voted that a warrant isn't necessary tells you that he thinks a warrant isn't necessary.

Re:Never forget

[Applehu Akbar]

I'm glad the decision went this way, but it was a close call. The dissenting argument was support for the longstanding "third party doctrine" which is that the Fourth doesn't apply because the records are not owned by the defendant, but by his communications carrier. If this really puts an end to third party, the implications are huge. The federosaurus will try for an immediate Congressional "fix" on whatever technical grounds it thinks will keep its investigative machinery going, but it will be highly controversial.

The majority opinion was that in the digital age the Fourth now extends to cover records you have placed in care of third parties. Do we get to see our entire medical records now, as HIPAA was supposed to specify? Can a communications provider refuse to share personal records with the government now, applying Apple-style encryption to them? For companies that did so, this could be a good selling point in a highly competitive market.

Need a Simple Standard

[crow]

The question of what requires a warrant needs to have a simple answer that is easy to apply.

My solution: If an unaffiliated private individual would be expected to be able, both technically and legally, to conduct the same operation, then no warrant is required. In these cases, there is no expectation of privacy, as anyone could gather the same evidence.

Once you go beyond that standard, there is an expectation of privacy, so the government should require some checks on the power to violate that privacy. The standard check is a court-issued warrant.

Re:Need a Simple Standard

[Wycliffe]

So, previously you could wholesale buy the real time tracking information of every single subscriber from the cell phone companies. Should that be made illegal or does the public availability make it OK for the goernment to obtain as well?

This shouldn't be saved in the first place. You should be required to have a warrant on each individual you want to track before storing this information. If cell phone companies weren't allowed to save this information long term then they wouldn't be tempted to sell it. There is no legitimate use for this information beyond knowing their CURRENT tower location and they definitely shouldn't be storing it longer than 24 hours without a warrant or explicit permission from the individual.

My Jury Duty Story Regarding Cell Phone Tracking

[TomR teh Pirate]

A few years ago I had been drafted into jury duty for the 9th circuit in California. The case involved some sort of Medicare scam involving bogus sales of medical "devices" such as mobility scooters. During the jury selection process, prosecutors asked the pool whether any prospective jurors took issue with warrantless location tracking via cell phone towers. Apparently I was the only person who took issue with this, because the other 71 people in the room did not raise their hands. My public conversation with the court went something like this:

Prosecutor: Why do you take exception to warrantless location tracking?
Me: I believe the 3rd party doctrine is being abused in a manner that is unconstitutional and therefore illegal

Judge: I will decide what is legal and illegal, and your job is to decide innocence or guilt
Me: Richard Nixon once declared that "if the President does it, it's not illegal". We all know how that turned out. I will decide for myself whether the spirit of the Constitution is being violated

Jurors were then adjourned while the judge, prosecutor, and defense attorney negotiated a jury pool. The pool was then welcomed back into the room, and I was thanked for my service, but then dismissed.

It's nice to see the Supreme Court finally came to the same conclusion.

Re:My Jury Duty Story Regarding Cell Phone Trackin

[NormalVisual]

I admire your restraint. I think I'd have probably responded to the judge's statement by replying that John Jay, the first Chief Justice of the Supreme Court, disagreed with his statement.

I'm a bit surprised that Roberts voted as he did, but it's a happy surprise.

Re:"voluntarily shared information"?

[Wycliffe]

While I agree with this court decision, I also realize that a cell phone is a device that de facto broadcasts your location.

The cell phone provider likely needs to know which tower you are CURRENTLY connected to but there is absolutely no reason that it needs to know your exact location nor does it need to store anything other than the tower you are CURRENTLY connected to. Storing GPS locations and/or previous cell tower locations should be outlawed and stop immediately. It is a ridiculous invasion of privacy that shouldn't be happening. There are certain things like 911 calls where transmitting GPS coordinates or last known location should possibly be allowed to be opted in to but storing multiple previous locations should be completely outlawed without a warrant.

Both party this. Neither passes laws protecting

[raymorris]

You're absolutely right, this case was mostly handled under the Obama administration, and the Trump administration could have chosen not to defend it.

It occurs to me that the legislature is supposed to pass laws saying what people can't do, including cops. The Constitution, as interpreted by SCOTUS, is the BARE MINIMUM protection that Congress and state legislatures MUST respect. Why the heck are we living under the bare minimum respect for our rights? Why has no state, under either party, ever passed a law saying cops must respect our rights by ... (not doing mass surveillance or whatever)? Neither Democrats nor Republicans hardly ever pass laws protecting our Constitutional rights. Instead, they both push the limits of how far they can go toward violating our rights.

The only major bills protecting rights which come to mind are the Civil Rights Acts, which barred racial discrimination. Of course, those were pushed by Republicans, with Democrats fighting against them, including a filibuster by Grand Dragon Robert Byrd, the only person Democrats elected to Congress for 55 years straight.

The Civil Rights Act and Voting Rights Act were quite a while ago now. Why hasn't Congress done anything significant to protect Constitutional rights since then?

Re:Both party this. Neither passes laws protecting

[Prien715]

The only major bills protecting rights which come to mind are the Civil Rights Acts, which barred racial discrimination. Of course, those were pushed by Republicans, with Democrats fighting against them, including a filibuster by Grand Dragon Robert Byrd, the only person Democrats elected to Congress for 55 years straight.

You're missing the part about it being Democrats introducing it, a Democratic president signing it, and how most (somehow Byrd stayed on) of the racists fled the Democrats into the waiting arms of the Republicans. The result was the openly racist Southern Strategy which persists as part of the GOP electoral map and campaign strategy to this day.

I did like the part about Byrd though -- didn't know that