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Feds Push For Warrantless Cell Phone Tracking 400

Posted by timothy
from the unless-you-are-in-favor-of-child-abduction dept.
An anonymous reader writes "An article at CNET is reporting on the Obama administration's push for warrantless tracking of the location of cell phones (Verizon Wireless stores location data for one year, for instance). The Justice Department says no warrant is necessary: 'Because wireless carriers regularly generate and retain the records at issue, and because these records provide only a very general indication of a user's whereabouts at certain times in the past, the requested cell-site records do not implicate a Fourth Amendment privacy interest.'"
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Feds Push For Warrantless Cell Phone Tracking

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  • Re:hope and change (Score:1, Informative)

    by Anonymous Coward on Thursday February 11, 2010 @02:50PM (#31102688)

    Hey, he is way more open about disregarding the Constitution and civil liberties.

  • by bagofbeans (567926) on Thursday February 11, 2010 @02:50PM (#31102692)
    See EFF page http://www.eff.org/press/archives/2010/02/08 [eff.org], but the interesting bit is FBI testimony from page 39 in this document http://www.eff.org/files/filenode/celltracking/Filed%20Cell%20Tracking%20Brief.pdf [eff.org]
  • Re:Confusing title (Score:3, Informative)

    by Jeremy Erwin (2054) on Thursday February 11, 2010 @03:11PM (#31103108) Journal

    The title is confusing because "warrantless" in this case means "without a warrant" (Warrant being a glam metal band from the 80s), whereas

    "warrantless" is usually taken to mean "unjustified",

    Stop right there.

    unwarranted having no justification, groundless

    American Heritage Dictionary of the English Language

    There's no need to split hairs. If the cops had grounds for a warrant, and could justify their reasoning to an independent magistrate, they would have a warrant. A warrantless search is an unwarranted search.

    This is basic english, folks.

  • by ari_j (90255) on Thursday February 11, 2010 @03:20PM (#31103250)
    You are correct, as far as the federal government goes. The state governments were not similarly limited except where the Constitution says they were to be. That has always been open to interpretation by the courts, with bizarre results such as the things that explicitly refer to Congress being imputed to the states long before the things that are worded in outright "nobody can do this" terms were. Classic example: First Amendment says 'Congress' but has long been applied to the states through the Fourteenth Amendment. Second Amendment says 'shall not be infringed' by anyone, but is still up in the air.

    The problem as far as the federal government goes is the commerce clause taken together with rational basis review. If Congress passes a law that says 'Whereas interstate commerce is affected by the lederhosen industry, all citizens are required to wear lederhosen on Tuesdays. Violation is a felony punishable by five years in federal pound-me-in-the-ass prison.', that's enough to say that they were exercising their power under the Interstate Commerce Clause. Rational basis review means that a court won't overturn a commerce clause-based law if there is any rational way that the law relates to interstate commerce. And that includes enforcement when the actual act had nothing to do with interstate commerce.

    For instance, a federal law that fixes grain prices will result in subsistence farmers being punished for violating it. (True story.) A federal law that says machine guns affect interstate commerce can be used to punish you for building a machine gun out of scrap metal even if none of it ever crossed state lines. (True story.) There are very few exceptions where the Supreme Court (after FDR and the New Deal) has thrown out a law for overstepping the authority of Congress under the commerce clause.

    Long story short: Congress is allowed to do anything it wants, because everything has some effect on interstate commerce.
  • by bill_mcgonigle (4333) * on Thursday February 11, 2010 @03:54PM (#31103788) Homepage Journal

    Then again, Obama has little faith in the Constitution, he considers it a document of "negative liberty" (see his NPR interview) that unfortunately tells he and his government lots of stuff (like this) they aren't allowed to do.

    Well, that's exactly right, the US Constitution is founded on a political concept of negative reciprocity. It's a promise of a limit of power from a government in exchange for a minimal surrender from the people.

    A promise obviously broken.

  • by ari_j (90255) on Thursday February 11, 2010 @03:59PM (#31103852)
    Sure. Congress can, under the interstate commerce clause, regulate the amount of wheat you grow to feed your own chickens. Wickard v. Filburn [wikipedia.org], 317 U.S. 111 (1942).

    Congress can criminalize, under the interstate commerce clause, mere possession of a machine gun that has never itself been in interstate commerce. United States v. Stewart [wikipedia.org], which the 9th Circuit was ordered by the Supreme Court to reconsider in light of Gonzales v. Raich [wikipedia.org], 545 U.S. 1 (2005), which held that Congress can criminalize marijuana that has never been in interstate commerce because locally grown cannabis changes the supply and demand for the product in the interstate trade. The 9th Circuit ended up reinstating the machine gun guy's conviction even though he built the gun from scratch without crossing state lines.
  • Re:Well, in fairness (Score:5, Informative)

    by Anonymous Coward on Thursday February 11, 2010 @04:05PM (#31103950)

    Google : "Slippery slope"

    We need to avoid these circular fallacies for eroding privacy requirements, such as:

    "If you don't want people to know, you shouldn't do it" or "If you want privacy, you're probably a criminal"

    Or my personal favorite, "If you're not doing anything wrong, you can't get in trouble".

    Bullsh. You let people start talking like that, and pretty soon we're all goose-stepping towards Auschwitz.

    This erosion of rights has got to be fought tooth and nail, now. Once we go warrant-free, there's no going back.

  • by Trailer Trash (60756) on Thursday February 11, 2010 @04:24PM (#31104248) Homepage

    Courts have ruled, yes, but they still have no Consitutional authority to do anything of the sort that you've highlighted above. It's an abomination that we've allowed our government to so wildly overstep its authority.

  • Bill of Rights (Score:1, Informative)

    by Anonymous Coward on Thursday February 11, 2010 @04:47PM (#31104560)

    The Constitution is a charter of negative liberties

    The constitution was meant to restrict the government from taking more and more control.

    Obama (and you) are thinking of the Bill of Rights.

    The Constitution assigns powers to the government.
    The Bill of Rights restricts those powers.

    "We, the people" retain all rights not assigned to Congress by the Constitution:
    The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
    - 9th amendment [wikipedia.org]

    Of course it's been flipped to be interpreted as the government having all powers not restricted by the BoR.

    Obama's vision is a constitution that has limitless government so said government can 'do things on your behalf', as though the government knew best.

    QFT, he wants a nanny/police-state.

  • Re:Well, in fairness (Score:3, Informative)

    by ukyoCE (106879) on Thursday February 11, 2010 @04:59PM (#31104764) Journal

    I don't know a ton about cell phone tech, but for the search example, I know as a developer that I'd want to hang on to searches for data mining usage patterns to improve the search service.

    I've never had the chance to anonymize data yet, but it seems like a one-way hash would be the only way you could anonymize the data while still continuing to tack new data onto the same "anonymous" user.

    To take a wild stab at the cell phone location data - there are charges based on location, and they need to retain the data for their help desk when you call in to say "why the hell did I get charged $5,000 this month for my data plan!" (and it turns out you went to Niagara Falls and got hooked into a canadian tower)

  • by Sandbags (964742) on Thursday February 11, 2010 @05:14PM (#31104996) Journal

    You forget the 5th amendment, for which with DUE PROCESS alone, the government CAN take your life, liberty, or property, with restrictions.

    However, that's irrelevant. There's nothing PRIVATE about where you went in public, where any officer so deputized could simply have followed you. Federal district court already rules that simply with due process, cops could place a tracking device on your car, in lieu of following you with manpower, given probable cause in an active case, and following due process. The supreme court chose not to hear the case, thereby affirming the ruling.

    Your actions in public are not private. WHO you called, and who you sent/received mail from (electronic or post) is not private either. Only the CONTENT of that communication is private, and what you do behind closed doors. This is NOT illegal. This has been backed REPEATEDLY in court. they STILL have to have due process to do this or you can still sue. They can't simply scan and log all this data for government use, it has to be a request-by-request access for active case work/investigations, and clearly documented. it simply does not require additional, advance, signature from a 2nd branch of government, that's the ONLY difference.

    As for your list, the only one the government can not ALREADY do without a warrant is get a customer list from a reseller. (though most will give this up willingly, and you can NOT sue the reseller if they do, unless you have a written agreement/contract with them explicitly for them to refuse to release that information, since it is their information).

    They do not need a warrant, but they need BOTH probable cause and due process. A warrant is just pre-approved due process, nothing more, and only applies where "reasonable" search is questionable or invasive, and when/how that is applied is a rule set by the supreme and other courts throughout our history.

  • by Chris Burke (6130) on Thursday February 11, 2010 @05:18PM (#31105056) Homepage

    His administration flat-out says in the article that Americans enjoy no "reasonable expectation of privacy."

    No reasonable expectation of privacy regarding the location of their phone. And in part because it's only a "general" indication of location.

    Which is still complete bullshit -- thank God the meat of the article is about a Magistrate denying them this ability. But they're not denying expectation of privacy ever exists.

    No, no, this is just another case of the Obama DoJ defending actions taken by the federal government during the Bush administration, using the fucked-up arguments required to do so. I mean, okay, so we aren't going to prosecute federal agents who were acting in accordance with the retarded legal opinions of AG Gonzalez. Fine. And if they didn't argue that the FBI's actions were legitimate, if they admitted that the evidence was illegally obtained, then the conviction of the Scarecrow Gang could be overturned.

    Well you know what? Maybe that's what has to happen. There has to be some consequence for violating the Constitution, even if your boss at the time assured you that you weren't, and if having the perps walk free is the only consequence we can get, then so be it. So yeah, fuck this argument, fuck this case, and may the sanity shown by Magistrate Judge Lenihan spread throughout the Judiciary (as the phrase from TFA "Only a minority [of Judges] has sided with the Justice Department, however." gives me some hope for).

  • by GaimanBohrs (1591799) on Thursday February 11, 2010 @05:43PM (#31105482)
    There has never been great outcry in the mainstream media over any of this, regardless of who was president at the time.
  • by Anonymous Coward on Thursday February 11, 2010 @06:02PM (#31105828)

    It's hardly elitism when the "USian" isn't even properly used and you want someone to communicate properly. You don't called people who live in the UK "UKians". If you want to be pedantic, you use "he/she is a United States of American" even though NO one would say that (they'd say he's from, or he's a citizen of). THIS is where there shortening comes from, not from some sense of grabbing the entirety of two continents.

  • by ari_j (90255) on Thursday February 11, 2010 @07:26PM (#31107030)
    Read it again. He wasn't convicted of selling a machine gun in interstate commerce. He was prosecuted for and convicted of possession of machine guns only. Not one count for which he was convicted involved moving anything in interstate commerce.

    And yes, his possession of machine guns was in violation of the statute under which he was charged. The issue was not whether he had violated the statute but rather whether the statute was enforceable as a proper exercise of Congress's authority to pass laws under the interstate commerce clause.

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