Legal Battles Over Cellphone Tracking 141
stupefaction writes "The New York Times reports on recent successful court challenges to police use of cellphone tracking information in the course of an investigation. From the article: 'In the last four months, three federal judges have denied prosecutors the right to get cellphone tracking information from wireless companies without first showing "probable cause" to believe that a crime has been or is being committed. That is the same standard applied to requests for search warrants. [...] Cellular operators like Verizon Wireless and Cingular Wireless know, within about 300 yards, the location of their subscribers whenever a phone is turned on.'"
Re:Criminals are tracked? (Score:4, Interesting)
In Belgium, they recently sent a SMS to all people wich a cellphone within a certain range to investigatigate a crime which happened at a gasstation, searching for witnesses. (which also raised alot of privacy questions.)
So even not just criminals I suspect, but just needing a motivation to get the data from the providers, which do have these access logs. I don't know the exact protocol used in GSMs, but when you turn on your phone it tries to connect to your provider. And tries to keeps that 'connention'. (fe. if you have roaming, and you cross the border, you get welcomed with an SMS from the new network you're connected to.)
Do phone companies save that info? (Score:3, Interesting)
OMG I feel so much safer now... (Score:3, Interesting)
In the last four months, three federal judges have denied prosecutors the right to get cellphone tracking information
So if I got this right, in recent years our rights were outright ignored, all this while in the name of the fight against terror even more legislation hindering our rights were regularly called for. And now I'm supposed to feel better because of THREE recents cases where judges actually did their jobs? Dunno, I don't have A.D.D, I'm lucid enough to see a situation of "three steps back, one step forward" when I see one.
Search warrants? (Score:4, Interesting)
If I'm on an investigation and I need to know where somebody is located who might be committing a crime, or, worse, might have a hostage, real-time knowledge of where this person is could be a matter of life or death."
Let's pretend he doesn't have a phone. Don't you need probable cause to search through his belongings (home/work-place/car)? Tough luck mate. But you can't just screw people over in the name of national security. Well, at least you couldn't.....
corroborating their whereabouts with witness accounts
Well get probable cause. Sheeesh. Or ask the person to give the police permission to look at his phone record location.
or helping build a case for a wiretap on the phone
Wait, you want to be able to access someone's phone records willy-nilly, so you can build up a case to access their phone records even more? Am I the only one to think this is crazy?
And the government is not required to report publicly when it makes such requests.
Now that's scary. I can understand them wanting to keep it quiet at the time it's happening, but come on. A week, or at most a month, should be sufficient time to no longer be crucial, especially if you're using it to obtain a hostage or arrest them. The only reason to keep it secret indefinitely is so you can to pull the wool over people's eyes as you widdle away their civil liberties.
Prosecutors, while acknowledging that they have to get a court order before obtaining real-time cell-site data, argue that the relevant standard is found in a 1994 amendment to the 1986 Stored Communications Act, a law that governs some aspects of cellphone surveillance.
That's a joke. How could the congressmen in 1986 have any idea what sort of application and usage cell-phones would have 10 years in the future? They probably gave wide-powers to the police, because at the time, it wasn't possible (and perhaps not even thinkable) for them to use those powers. You can't blame them for not forseeing the future, and to claim they did and that the law should still be used is ridiculous. That's like claiming the right to bear arms in the constitution gives every citizen the right to have nuclear weapons. There was no way nuclear weapons were invisaged when America was formed.
The standard calls for the government to show "specific and articulable facts" that demonstrate that the records sought are "relevant and material to an ongoing investigation" - a standard lower than the probable-cause hurdle.
The language is very telling. "Oh it's just a necessity in our way. We don't need to worry about that." I believe perhaps the standard should be raised, especially with an opinion like that.
Prosecutors in the recent cases also unsuccessfully argued that the expanded police powers under the USA Patriot Act could be read as allowing cellphone tracking under a standard lower than probable cause.
God bless us. Every one. (Thankfully they have been unsuccessful, although is that 100% of the time? I don't think so.)
In the digital era, what's on the envelope and what's inside of it, "have absolutely blurred," said Marc Rotenberg, executive director of the Electronic Privacy Information Center, a privacy advocacy group.
And so the prosecution predictably wants it to be treated as if it were all on the envelope.
And that makes it harder for courts to determine whether a certain digital surveillance method invokes Fourth Amendment protections against unreasonable searches.
Re:Do phone companies save that info? (Score:3, Interesting)
True. Bear in mind that this kind of system proves where your phone was - not necessarily where you were.
I know of at least one case where positioning information from a mobile has helped to clear someone, that of Damilola Taylor [bbc.co.uk]. Four youngsters were accused of murdering an 11-year-old boy. A mobile belonging to one of the defendants was used two miles from the scene of the crime, seven minutes beforehand, and it seemed there was no way he could have covered the distance quickly enough. (It later transpired that there was a shortcut that the prosecution didn't know about or didn't consider.)
The main reason the defendants were cleared was actually that a key prosecution witness was found to have lied about something. The judge decided that her testimony was unreliable and ordered the jury to acquit two of the defendants. They later found the other two not guilty.
Big Brother law coming to Europe next week... (Score:5, Interesting)
The "Data Retention Directive" proposes tracking all mobile phone and Internet usage, and storing this for 2 years, and (worst) making it available to police and other parties (possibly commercial ones), without much regard to existing privacy laws.
There is an FFII press release on this subject: http://wiki.ffii.de/DataRetPr051205En [wiki.ffii.de].
The FFII and EDRI are fighting this in the Parliament, but the directive has been shoved through very brutally by the Council, led by the UK. Basically the bureaucrats of the Commission, unhindered by any European Constitution, are creating laws by stealth, and this Big Brother directive is symptomatic of a take over of the national legislative processes by an group of unelected, unaccountable officials.
The UK Presidency had proposed a very brutal law, which went as far as requiring the logging of the MAC address of every computer connected to the Internet (yes, that blew me away too), and using the Good Cop/ Bad Cop approach, bullied the Parliament into accepting a "compromise" agreement that dropped all the references to terrorism, and added a bunch of waffle about human rights, but basically creates a pan-European database of every cellphone call, and every Internet communication. I've not yet had time to see whether TCP/IP end-points are also logged, but the original proposals definitely requested this.
Europe is rapidly turning into a police state that makes the US look like a haven of freedom and civil rights. The rejection of the European Constitution by the French and Dutch voters, though a nicely symbolic act, have left a power vacuum into which the grey bureaucrats of the Commission have stepped.
Ok, but what about getting info from other sources (Score:3, Interesting)
Even if legislation is written up that specifically prevents govt. and police from obtaining this type of info from the *cellular companies* without a warrant, would the same apply if they wanted it from a private business?